[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 [www.gpo.gov]
[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: 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 <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: 
https://www.iattc.org/PDFFiles/AIDCP/_English/AIDCP.pdf.
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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: https://www.iattc.org/PDFFiles/IATTC-Instruments/_English/IATTC_Antigua_Convention%20Jun%202003.pdf.
    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: 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:

[[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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