Rule2022-12114
International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Implementation of Emergency Decisions of the Western and Central Pacific Fisheries Commission
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
June 7, 2022
Effective
July 7, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
Under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act), NMFS issues this rule to make final an interim rule that established a framework to implement short-notice decisions of the Commission on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC).
Full Text
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<title>Federal Register, Volume 87 Issue 109 (Tuesday, June 7, 2022)</title>
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[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Rules and Regulations]
[Pages 34580-34584]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12114]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 220531-0126]
RIN 0648-BJ86
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Implementation of Emergency Decisions of
the Western and Central Pacific Fisheries Commission
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Under authority of the Western and Central Pacific Fisheries
Convention Implementation Act (WCPFC Implementation Act), NMFS issues
this rule to make final an interim rule that established a framework to
implement short-notice decisions of the Commission on the Conservation
and Management of Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean (Commission or WCPFC).
DATES: Effective July 7, 2022, we confirm the effective date of June
11, 2021 of the interim final rule published on June 11, 2021 (86 FR
31178).
ADDRESSES: Copies of supporting documents prepared for this final rule,
including the regulatory impact review (RIR), the programmatic
environmental assessment (PEA), 2019 supplemental environmental
assessment (SEA), and 2021 SEA, as well as the interim final rule (86
FR 31178; June 11, 2021), are available via the Federal e-rulemaking
Portal, at <a href="http://www.regulations.gov">www.regulations.gov</a> (search for Docket ID NOAA-NMFS-2020-
0150). Those documents are also available from NMFS at the following
address: Michael D. Tosatto, Regional Administrator, NMFS, Pacific
Islands Regional Office (PIRO), 1845 Wasp Blvd., Building 176,
Honolulu, HI 96818.
FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.
SUPPLEMENTARY INFORMATION:
Background
On June 11, 2021, NMFS published an interim final rule to establish
a framework to implement short-notice decisions of the Commission (86
FR 31178; June 11, 2021). The 30-day comment period for the interim
final rule closed on July 12, 2021.
[[Page 34581]]
The Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean
(Convention) is concerned with the conservation and management of
highly migratory fish stocks (HMS) and the management of fisheries for
HMS. The objective of the Convention is to ensure, through effective
management, the long-term conservation and sustainable use of HMS in
the western and central Pacific Ocean (WCPO). To accomplish this
objective, the Convention established the Commission, which includes
Members, Cooperating Non-members, and Participating Territories
(collectively referred to here as ``members''). The United States of
America is a Member. American Samoa, Guam, and the Commonwealth of the
Northern Mariana Islands are Participating Territories.
This final rule is issued under the authority of the WCPFC
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the
Secretary of Commerce, in consultation with the Secretary of State and
the Secretary of the Department in which the United States Coast Guard
is operating (currently the Department of Homeland Security), to
promulgate such regulations as may be necessary to carry out the
obligations of the United States under the Convention, including the
decisions of the Commission. The authority to promulgate regulations
has been delegated to NMFS. The preamble to the interim final rule
provides background information on a number of matters, including the
Convention and the Commission, and the basis for the regulations, which
are not repeated here.
Under the interim final rule, NMFS established a process to
implement short-notice WCPFC decisions requiring immediate action that
address relevant global or regional health, safety, and security
concerns, as well as other international emergencies and crises. NMFS
used that process to implement three short-notice WCPFC decisions
through temporary specifications that waived specific requirements for
purse seine observer coverage, purse seine at-sea transshipment, and
at-sea transshipment observer requirements. NMFS has extended those
temporary specifications several times, and based on the most recent
WCPFC decision to extend the waivers for purse seine observer coverage
and at-sea transshipment observer coverage, has extended those two
temporary specifications until June 10, 2022 (87 FR 21812; April 13,
2022).
Under the process established in the interim final rule at 50 CFR
300.228, temporary specifications may remain in effect for a period
less than one year. Due to current COVID-19 conditions, the Commission
has decided to extend the WCPFC decisions to waive specific
requirements for purse seine observer coverage and at-sea transshipment
observer requirements until June 15, 2022, which is beyond the period
of one year, and the Commission may issue additional extensions of
those waivers until worldwide COVID-19 conditions improve. Thus, NMFS
is simultaneously issuing a separate interim final rule (RIN 0648-BL24)
to extend the time period in which COVID-19 related temporary
specifications may be effective from less than one year to no later
than December 31, 2023, after which date the effective period will
revert back to less than one year.
The Action
This final rule makes permanent the changes to 50 CFR part 300,
subpart O, that were made by the interim final rule establishing a
framework through which NMFS may issue temporary specifications, each
for a period less than one year in total, inclusive of all extensions,
that promptly suspend or modify specific existing regulations in
subpart O. Those regulations were detailed in the interim final rule
and implement the United States' obligations under the Convention and
WCPFC decisions.
As appropriate, temporary specifications may remain in effect up to
30 days after the expiration of the underlying WCPFC decision to allow
NMFS adequate time to issue extensions or changes to the temporary
specification, if needed, without unnecessarily exceeding the timeframe
of the underlying WCPFC decision.
Any temporary specification issued pursuant to this framework will
be published in the Federal Register and will include information
regarding the basis for the modification or suspension (i.e., a
description of the WCPFC decision), the temporary modifications or
suspension to the regulations, and the duration of the changes. Under
the framework, NMFS may change (including extend, so long as the
duration of the original temporary specification in addition to any
extension is less than one year) any temporary specification by
publishing a new temporary specification in the Federal Register. NMFS
may revoke any temporary specification by publishing a notification in
the Federal Register.
Temporary specifications issued under the framework (found at 50
CFR 300.228, and as affirmed in this final rule) shall be limited to
the following:
(1) Modifications or suspensions of the purse seine observer
coverage requirements at 50 CFR 300.223(e), including suspensions of
some or all of the requirements on a fleet-wide or individual vessel
basis, requiring the carrying of observers other than WCPFC observers,
requirements to carry electronic monitoring devices in lieu of
observers, and requirements to collect and submit photographic or
written information;
(2) Modifications or suspensions of the regulations at 50 CFR
300.216(b)(1) prohibiting at-sea transshipment for purse seine vessels,
including suspensions of some or all of the prohibitions, prior
notification for an at-sea transshipment, and suspension of the
prohibitions for particular transshipments; and
(3) Modifications or suspensions of the regulations at 50 CFR
300.215(d) and 50 CFR 300.216(b)(2) regarding at-sea transshipment
observer requirements, including suspensions of some or all of the
requirements, suspension of some or all of the requirements for
particular transshipments, requiring the carrying of observers other
than WCPFC observers, requirements to carry electronic monitoring
devices in lieu of observers, and requirements to collect and submit
photographic or written information.
Comments and Responses
NMFS received one comment letter on the interim final rule from the
American Tunaboat Association (ATA), which represents U.S. purse seine
vessels operating in the Pacific Ocean. ATA's letter contained several
discrete comments. The comments are summarized below, followed by
responses from NMFS.
Comment 1: ATA supports the interim final rule and appreciates that
the rule responds in large part to ATA's comments submitted in response
to a separate NMFS rulemaking that addressed observer coverage
requirements during the COVID-19 pandemic.\1\ ATA understands that the
rule will apply only to suspension of WCPFC purse seine observer
coverage requirements, suspension of the prohibition against purse
seine transshipment at sea, and suspension of the at-sea transshipment
observer coverage requirements. ATA supports NMFS's ability to quickly
implement short-notice WCPFC decisions on these matters to ensure
minimal disruption to
[[Page 34582]]
the operations of the U.S. purse seine fleet.
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\1\ See 86 FR 16307, published March 29, 2021.
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Response: NMFS acknowledges the comment and agrees with ATA's
understanding of the rule.
Comment 2: ATA requests NMFS to ensure that its adoption and
implementation of the interim final rule and temporary specifications
comply with the Administrative Procedure Act's (APA) requirements to
provide the public with notice and an opportunity to comment before
adopting a rule, and to provide a 30-day delay in the effective date of
any substantive rule. These requirements ensure that interested and
affected persons have an opportunity to alert NMFS to potential legal
and practical problems arising from a rule before it is finalized, and
allow interested and affected persons to adjust behavior before the
rule goes into effect. According to ATA, NMFS's framework for adopting
temporary specifications does not include an opportunity to comment,
does not include any delay in the effective date of the regulatory
change, and does not give any indication that NMFS would rely on the
good cause exceptions in Section 553 of the APA to waive those
provisions. According to ATA, providing some delay in the effective
date and some opportunity to comment on the adoption, change, or
revocation of temporary specifications issued under the framework is
essential for ensuring that ATA members receive adequate opportunity to
participate in the process and for ensuring that NMFS implements short-
notice Commission decisions in the most effective manner possible. ATA
also stated that providing some delay in the effective date and some
opportunity to comment on the adoption, change, or revocation of
temporary specifications issued under the framework could strengthen
the legal viability of NMFS's approach.
ATA states that NMFS should ensure that members of the regulated
community receive a fair opportunity to adjust their behavior to comply
with the adoption, change or revocation of temporary specifications.
According to ATA, making a framework action immediately effective could
render compliance impossible or could be extremely costly for ATA
members. ATA gives the following example. If NMFS were to immediately
revoke the observer waiver specifications during the middle of an ATA
member's fishing trip, that member would face the threat of an
enforcement action for any fishing done without an observer that
occurred before the members learned of the revocation. If the ATA
member had real-time notice of the revocation, that member would be
forced to immediately stop fishing and return to a port where an
observer could be made available, which could cause economic harm. ATA
suggests that NMFS alter the interim final rule so that it provides an
adequate effective-date delay for those actions that would impose new
or restore preexisting obligations. Alternatively, ATA suggests
addressing the problematic situation in each temporary specification.
For example, for the situation described above regarding revocation of
the purse seine observer waiver, ATA suggested that NMFS could clarify
in the relevant Federal Register publication that the revocation would
become effective after an appropriate number of days or on a vessel-by-
vessel basis, as each vessel commences its first post-revocation
fishing trip.
ATA states that NMFS should also provide an opportunity for public
comment on temporary specifications before they become final. According
to ATA, without some opportunity to comment on temporary specifications
before they are finalized and go into effect, ATA members may be
subject to significant sunk costs without any process. For example, the
framework contemplates the potential adoption of a temporary
specification requiring the use of electronic monitoring devices in
lieu of observers. According to ATA, the costs to obtain and install
such devices would be significant and permanent. If video cameras were
used, ATA members would want to comment on how footage could be used
and on enforcement implications of those uses of footage.
Response: NMFS appreciates ATA's concerns and the suggestions
provided. The framework process, established at 50 CFR 300.228, allows
NMFS to implement short-notice WCPFC decisions in an efficient manner,
but we note that the framework process applies only when time is of the
essence. Under the framework, NMFS may implement short-notice WCPFC
decisions through publication of a notification of a temporary
specification in the Federal Register instead of through changes or
additions to codified regulations. NMFS may also revoke or modify such
temporary specifications through notification in the Federal Register,
rather than through changes or additions to codified regulations.
However, the new framework process does not create a blanket exemption
to the APA's section 553 requirements for prior notice and opportunity
for public comment and for the 30-day delay in the effective date of a
new rule (5 U.S.C. 553). If NMFS decides to use the framework process
to publish a temporary specification without providing prior notice or
opportunity for public comment or the 30-day delay in effective date,
NMFS would comply with the APA section 553 requirements and would only
waive those requirements when there is justification to do so, and
would explain the reasoning for the waiver(s) in the temporary
specification. Section 553(b)(B) identifies those circumstances in
which the agency may waive requirements for prior notice and comment:
when the agency finds, for good cause, that compliance is
impracticable, unnecessary, or contrary to the public interest. Section
553(d) identifies those circumstances in which the agency may waive the
requirement for the 30-day delay in the date of effectiveness,
including when a substantive rule grants or recognizes an exemption or
relieves a restriction, when the agency finds good cause, which is
published with the rule. Examples of circumstances that NMFS believes
may support such waivers include emergencies, situations where delay
may frustrate the accomplishment of a statutory purpose, pandemics
(such as the COVID-19 pandemic), or where the public has already been
afforded a prior opportunity for public comment. NMFS evaluates the
need for waiver of prior notice and opportunity for public comment and
the need for waiver of the 30-day delay in the date of effectiveness
for each temporary specification issued under the framework on a case-
by-case basis. NMFS believes that Section 553 of the APA provides
adequate safeguards to ensure that the concerns raised by ATA are
addressed.
Comment 3: ATA states that NMFS should clarify the limited scope of
the interim final rule. According to ATA, the preamble for the interim
final rule contains potentially conflicting statements regarding its
scope. Based on the preamble and regulatory language, ATA understands
that, through the framework process, NMFS can only modify or suspend
provisions concerning requirements contained in 50 CFR 300.223(e), 50
CFR 300.215(d), 50 CFR 300.216(b)(1), and 50 CFR 300.216(b)(2), and
that any modification or suspensions would be limited to implementing
short-notice Commission decisions, where those decisions address
relevant global or regional health, safety, and security concerns, as
well as other international emergencies and crises. However, according
to ATA, elsewhere in the preamble, NMFS states that the interim final
rule establishes a framework through which NMFS may
[[Page 34583]]
issue temporary specifications that suspend or modify all existing
regulations in 50 CFR part 300, subpart O. ATA requests that NMFS
confirm that the interim final rule is limited to implementing
Commission decisions related to the specific provisions in 50 CFR part
300 subpart O identified in the regulatory text rather than all of 50
CFR part 300 subpart O. In addition, ATA requests NMFS to clarify if
NMFS foresees expanding upon the specific regulations it can suspend or
modify using the framework.
Response: As stated in the preamble to the interim final rule, the
framework has been established to provide NMFS with a process for
efficiently modifying or suspending NMFS regulations in response to
short-notice WCPFC decisions, including intersessional decisions that
address relevant global or regional health, safety, and security
concerns, as well as other international emergencies and crises. This
framework helps ensure that NMFS regulations remain consistent with our
international obligations, even when those obligations may unexpectedly
and quickly change in response to global events of an emergency nature.
The purpose of this framework is not to implement the great majority of
WCPFC decisions, which NMFS would implement in rules, taking into
account that those decisions are to enter into effect at least 60 days
after the decision is made, as specified in Article 20(5) of the
Convention.
As stated above (see the ``The Action'' heading above), and as
detailed at 50 CFR 300.228 (as affirmed in this final rule), temporary
specifications issued under the framework in this final rule) are
limited to the following types of actions:
(1) Modifications or suspensions of the purse seine observer
coverage requirements at 50 CFR 300.223(e), including suspensions of
some or all of the requirements on a fleet-wide or individual vessel
basis, requiring the carrying of observers other than WCPFC observers,
requirements to carry electronic monitoring devices in lieu of
observers, and requirements to collect and submit photographic or
written information;
(2) Modifications or suspensions of the regulations at 50 CFR
300.216(b)(1) prohibiting at-sea transshipment for purse seine vessels,
including suspensions of some or all of the prohibitions, prior
notification for an at-sea transshipment, and suspension of the
prohibitions for particular transshipments; and
(3) Modifications or suspensions of the regulations at 50 CFR
300.215(d) and 50 CFR 300.216(b)(2) regarding at-sea transshipment
observer requirements, including suspensions of some or all of the
requirements, suspension of some or all of the requirements for
particular transshipments, requiring the carrying of observers other
than WCPFC observers, requirements to carry electronic monitoring
devices in lieu of observers, and requirements to collect and submit
photographic or written information.
The circumstances in which the framework will be used are narrow.
Any changes to the regulations at 50 CFR 300.228 would require
rulemaking action that would be subject to the APA requirements.
Comment 4: ATA requests that NMFS confirm that two sources of
authority presently provide for the waiver of observer requirements for
the purse seine fishery. ATA believes that NMFS's present action
properly links the duration of the three temporary specifications to
Commission decisions, which have reflected and will reflect the
realities facing the U.S. purse seine fishery for observer coverage
issues. ATA greatly appreciates NMFS's effort here. That said, ATA
requests that NMFS provide some additional clarification. ATA states
that the interim final rule is silent on the forward-looking
relationship between the purse seine fishery and NMFS's observer-waiver
rule (85 FR 17285; March 27, 2020) and the extension of that rule (86
FR 16307; March 29, 2021). ATA understands that NMFS now has two
independent sources of authority by which to waive observer
requirements for the U.S. purse seine fishery--the observer-waiver rule
(applicable to multiple fisheries) issued under the emergency authority
of 16 U.S.C. 1855(c), and the interim final rule (applicable to the
U.S. purse seine fishery) issued pursuant to the WCPFC Implementation
Act. Based on this, ATA also understands that its members may presently
have two current sources of authorization for the waiver of observer
requirements. It would be helpful if NMFS would confirm whether ATA's
understanding on these two points is accurate.
Response: As noted by the commenter, NMFS uses the framework
process at 50 CFR 300.228 to implement short-notice WCPFC decisions
regarding the waiver of U.S. purse seine observer coverage requirements
in response to the COVID-19 pandemic. The NMFS observer-waiver rule
referenced by the commenter was effective only until March 26, 2022
(see 86 FR 16307).
No changes from the interim final rule have been made in this final
rule.
Classification
The Administrator, Pacific Islands Region, NMFS, has determined
that this final rule is consistent with the WCPFC Implementation Act
and other applicable laws.
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
As stated in the interim final rule, because prior notice and
opportunity for public comment were not required for the interim final
rule by 5 U.S.C. 553, or any other law, the analytical requirements of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.
Therefore, no regulatory flexibility analysis was required and none has
been prepared. Prior notice and opportunity for public comment were not
required because there was good cause under 5 U.S.C. 553(b)(B) to waive
prior notice and the opportunity for public comment on the interim
final rule and temporary measures. Prior notice and the opportunity for
public comment would have been contrary to the public interest. When
the interim final rule was issued, three short-notice WCPFC decisions
needing immediate implementation had already gone into effect and NMFS
was implementing those three decisions through the framework process
established under the interim final rule. In addition, NMFS believed it
was likely that the WCPFC would agree upon additional short-notice
decisions, which address relevant global or regional health, safety,
and security concerns, as well as other international emergencies and
crises, in the near future. The process established under the interim
final rule provided NMFS with the ability to carry out the obligations
of the United States under the Convention, including promptly
implementing the short-notice decisions of the Commission. NMFS stated
that it would consider and respond to public comments received on the
interim final rule, which it has done here.
For the reasons articulated above, NMFS also found good cause under
5 U.S.C. 553(d)(3) to waive the 30-day delay in effective dates for the
interim final rule and the temporary measures.
Paperwork Reduction Act
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
Accordingly, this final rule affirms (without change) the
regulatory text of the interim final rule that amended 50
[[Page 34584]]
CFR part 300 and that was published at 86 FR 31178 on June 11, 2021.
Authority: 16 U.S.C. 6901 et seq.
Dated: June 1, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2022-12114 Filed 6-6-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on June 7, 2022.
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