17018 Federal Register / Vol. 87, No. 58 / Friday, March 25, 2022 / Rules and Regulations 

1 Defined as waters of the EPO within the area 

bounded by the west coast of the Americas and by 

50° N latitude, 150° W longitude, and 50° S latitude. 

2 Defined as waters of the EPO within the area 

bounded by the west coast of the Americas and by 

50° N latitude, 150° W longitude, and 50° S latitude. 

[FR Doc. 2022–06327 Filed 3–24–22; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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: 

www.regulations.gov, 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 WCR.HMS@

noaa.gov. 

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° N. latitude, 

150° W. longitude, and 50° 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: https://

www.iattc.org/PDFFiles/AIDCP/_

English/AIDCP.pdf. 

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: https://www.iattc.org/PDFFiles/ 

IATTC-Instruments/_English/IATTC_

Antigua_Convention%20Jun%202003.

pdf. 

The IATTC consists of 21 member 

nations and five cooperating nonmember 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. 

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 


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3Copies of IATTC Memo #0173–420 as well as 

the original NMFS exemption procedures can be 

found in the docket for this rulemaking. 

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. 

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 

§ 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 


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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: 

• Vessel owners/operators planning a 

fishing trip in the EPO are to contact the 

IATTC Director and Observer 

Coordinator to request an observer. 

• 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: 

• 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. 

• 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. 

• A NMFS observer exemption may 

be requested from the NMFS West Coast 

Region, Sustainable Fisheries Division, 

Highly Migratory Species (HMS) 

Branch, via WCR.HMS@noaa.gov. 

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 

§ 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 dolphinsafe 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 IDCPmember 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 DolphinSafe 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 

§ 300.25, Fisheries Management, that restates, and cross-references to, the 

observer coverage requirement in 

§ 216.24(e)(1). This provision, found at 

§ 300.25(d), clarifies that the 

requirements in § 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 § 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 nongovernmental 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. 


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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 pandemicrelated 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 


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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 nondolphin-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-ofinformation 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: https://www.reginfo.gov/ 

public/do/PRAMain. 

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: 


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Federal Register / Vol. 87, No. 58 / Friday, March 25, 2022 / Rules and Regulations 17023 

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

Subpart C—General Exceptions 

■ 1. The authority citation for part 216, 

subpart C, continues to read as follows: 

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

■ 2. Amend § 216.24 by adding 

paragraph (e)(1)(i) and reserved 

paragraph (e)(1)(ii) to read as follows: 

§ 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-bycase 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 WCR.HMS@noaa.gov, or in 

a manner acceptable to the 

Administrator, West Coast Region. 

(ii) [Reserved] 

* * * * * 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart C—Eastern Pacific Tuna 

Fisheries 

■ 3. The authority citation for part 300, 

subpart C, continues to read as follows: 

Authority: 16 U.S.C. 951 et seq. 

■ 4. Amend § 300.24 by revising 

paragraph (n) to read as follows: 

§ 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 § 300.25(d) or 

the purse seine closure period 

requirements in § 300.25(e)(1), (2), or 

(5). 

* * * * * 

■ 5. Amend § 300.25 by adding 

paragraph (d) to read as follows: 

§ 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 § 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 § 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 § 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No.: 211217–0262; RTID 0648– 

XB894] 

Fisheries of the Northeastern United 

States; Summer Flounder Fishery; 

Quota Transfer From VA to NJ 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notification of quota transfer. 

SUMMARY: NMFS announces that the 

Commonwealth of Virginia is 

transferring a portion of its 2022 

commercial summer flounder quota to 

the State of New Jersey. This adjustment 

to the 2022 fishing year quota is 

necessary to comply with the Summer 

Flounder, Scup, and Black Sea Bass 

Fishery Management Plan quota transfer 

provisions. This announcement informs 

the public of the revised 2022 

commercial quotas for Virginia and New 

Jersey. 

DATES: Effective March 24, 2022, 

through December 31, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Laura Deighan, Fishery Management 

Specialist, (978) 281–9184. 

SUPPLEMENTARY INFORMATION: 

Regulations governing the summer 

flounder fishery are found in 50 CFR 

648.100 through 648.110. These 

regulations require annual specification 

of a commercial quota that is 

apportioned among the coastal states 

from Maine through North Carolina. The 

process to set the annual commercial 

quota and the percent allocated to each 

state is described in § 648.102 and final 

2022 allocations were published on 

December 23, 2021 (86 FR 72859). 

The final rule implementing 

Amendment 5 to the Summer Flounder 

Fishery Management Plan (FMP), as 

published in the Federal Register on 

December 17, 1993 (58 FR 65936), 

provided a mechanism for transferring 

summer flounder commercial quota 

from one state to another. Two or more 

states, under mutual agreement and 

with the concurrence of the NMFS 

Greater Atlantic Regional Administrator, 

can transfer or combine summer 

flounder commercial quota under 

§ 648.102(c)(2). The Regional 

Administrator is required to consider 

three criteria in the evaluation of 

requests for quota transfers or 

combinations: The transfer or 

combinations would not preclude the 

overall annual quota from being fully 

harvested; the transfer addresses an 

unforeseen variation or contingency in 

the fishery; and the transfer is consistent 

with the objectives of the FMP and the 

Magnuson-Stevens Fishery 

Conservation and Management Act. The 

Regional Administrator has determined 

these three criteria have been met for 

the transfer approved in this 

notification. 

Virginia is transferring 770 lb (349 kg) 

to New Jersey through mutual 

agreement of the states. This transfer 

was requested to repay landings made 

by an out-of-state permitted vessel 

under a safe harbor agreement. The 

revised summer flounder quotas for 

2022 are: Virginia, 2,787,731 lb 

(1,264,494 kg) and New Jersey, 

2,338,498 lb (1,060,725 kg). 


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