[Federal Register Volume 85, Number 96 (Monday, May 18, 2020)]
[Rules and Regulations]
[Pages 29666-29670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10407]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216 and 300
[Docket No. 200511-0133]
RIN 0648-BJ23
International Fisheries; Pacific Tuna Fisheries; Fishing
Restrictions for Silky Shark, Fish Aggregating Devices, and Observer
Safety 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 Tuna Conventions Act to
implement three Resolutions adopted by the Inter-American Tropical Tuna
Commission (IATTC) in 2018 and 2019: Resolution C-19-01 (Amendment to
Resolution C-18-05 on the Collection and Analyses of Data on Fish-
Aggregating Devices); Resolution C-19-05 (Amendment to the Resolution
C-16-06 Conservation Measures for Shark Species, with Special Emphasis
on the Silky Shark (Carcharhinus falciformis), for the Years 2020 and
2021); and Resolution C-18-07 (Resolution on Improving Observer Safety
at Sea: Emergency Action Plan). NMFS also issues regulations under the
Marine Mammal Protection Act to implement a Resolution adopted by
parties to the Agreement on the International Dolphin Conservation
Program (AIDCP): Resolution A-18-03 (On Improving Observer Safety At
Sea: Emergency Action Plan). This final rule is necessary for the
United States to satisfy its obligations as a member of the IATTC and
Party to the AIDCP.
DATES: The amendment to Sec. 300.27(e) is effective June 17, 2020, and
the remaining amendments are delayed. NMFS will publish a document in
the Federal Register announcing the effective date.
ADDRESSES: Copies of supporting documents are available via the Federal
eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2019-
0149, or contact Rachael Wadsworth, NMFS WCR SFD, 7600 Sand Point Way
NE, Building 1, Seattle, WA 98115, or [email protected].
FOR FURTHER INFORMATION CONTACT: Rachael Wadsworth, NMFS at 562-980-
4036.
SUPPLEMENTARY INFORMATION:
Background
On January 24, 2020, NMFS published the proposed rule in the
Federal Register (85 FR 4250) to implement provisions of three IATTC
Resolutions and one AIDCP Resolution on silky shark, data collection
for fish aggregating devices (FADs), and observer safety. The proposed
rule contains additional background information, including information
on the IATTC, AIDCP, and Convention Areas; the international
obligations of the United States as an IATTC member and Party to the
AIDCP; and the need for these regulations. The 30-day public comment
period for the proposed rule closed on February 24, 2020.
[[Page 29667]]
This final rule is implemented under the Tuna Conventions Act (16
U.S.C. 951 et seq.) and the Marine Mammal Protection Act (16 U.S.C.
1361 et seq.). This rule applies to U.S. commercial fishing vessels
that fish for tuna or tuna-like species 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.
Because the preamble of the proposed rule contained detailed
information on the Resolutions, this final rule will briefly summarize
these Resolutions and include more detail on the new regulations.
New Regulations
The new regulations implemented in the final rule as related to FAD
data reporting, silky sharks, and observer safety are described below.
FAD Data Collection
Per Resolution C-19-01, this rule revises existing regulations for
FAD data collection requirements to remove the reporting requirements
for captains of purse seine vessels fishing on FADs that have observers
onboard. Because IATTC observers are now collecting all of the
information previously required on the FAD data collection form, the
IATTC removed this requirement for captains. Captains are still
required to provide the observer with the FAD identification code and,
as appropriate, the other information in the standard format. On purse
seine vessels without an observer aboard, the captain is still
responsible for recording the information on the FAD form developed by
the IATTC staff.
Silky Shark
This final rule bans the retention of silky shark by U.S. longline
vessels in the IATTC Convention Area. Paragraph 5 of Resolution C-19-05
on silky shark requires establishment of an inspection system at
landing ports for members and cooperating non-members that allow
retention of silky shark by longline vessels. However, NMFS considered
the time and effort required to implement a port inspection system and
the impacts on U.S. longline vessels that would be subjected to such an
inspection process. Given these considerations, NMFS determined that
implementing the port inspection requirement of the Resolution would be
more of a burden to the U.S. Government and the public than simply
prohibiting all retention of silky shark on U.S. longline vessels in
the IATTC Convention Area. Therefore, this rule institutes such a ban.
Because U.S. longline vessels fishing in the IATTC Convention Area
do not target, and infrequently catch, silky sharks, a retention ban
for longline vessels would not impact current fishing practices. Data
from 2008 to 2015 indicate that virtually all incidentally caught silky
sharks in the IATTC Convention Area were released by U.S. longline
vessels, and almost all were released alive. In addition, such a
prohibition in the eastern Pacific Ocean would be consistent with U.S.
regulations in the western Pacific Ocean. Since 2015, U.S. vessels
fishing in the western and central Pacific Ocean have been subject to a
prohibition on the retention on board, transshipping, storing, or
landing any part or whole carcass of a silky shark that is caught in
the Western and Central Pacific Fisheries Commission Convention Area
(50 CFR 300.226).
Per Resolution C-19-05, the final rule also increases flexibility
for retention of silky shark on purse seine vessels that are not seen
during fishing operations and are delivered into the vessel hold. Since
January 2017, the IATTC Resolution and U.S. regulations have prohibited
retention of silky shark on purse seine vessels caught in the IATTC
Convention Area. This rule allows for exemptions in the case of any
silky shark that is not seen during fishing operations and is delivered
into the vessel hold. In such case, the silky shark may be stored on
board and landed, but the vessel owner or operator must surrender the
whole silky shark to a government authority present at the point of
landing. In U.S. ports the responsible governmental authority is the
NOAA Office of Law Enforcement divisional office nearest to the port.
If government authorities are unavailable, the whole silky shark must
not be sold or bartered but must be donated for purposes of domestic
human consumption consistent with relevant laws and policies. The
vessel owner or operator shall report any silky sharks surrendered in
this manner to the IATTC Secretariat by recording the incident in the
note section of the IATTC Pacific Tuna Regional Logbook.
U.S. purse seine vessels do not target or intentionally retain
silky shark in the IATTC Convention Area, yet they are caught
incidentally and are primarily discarded. The regulations are expected
to provide regulatory relief from the previous prohibition on the
retention of silky shark that are not seen during fishing operations
and are delivered into the vessel hold and frozen during fishing
operations, which is an infrequent event for U.S. purse seine vessels.
Observer Safety
This final rule implements provisions of Resolutions C-18-07 and A-
18-03 to strengthen protections for observers in longline and
transshipment observer programs required by the IATTC and on purse
seine vessels required by the AIDCP. Most of the requirements in these
Resolutions are already required by procedures implemented by the U.S.
Coast Guard (USCG) in its marine casualty regulations at 46 CFR part 4.
This rule is intended to fill the gaps between the existing USCG
procedures and these Resolutions. There are two categories of observer
safety incidents (serious illness and harassment) that are specified in
the IATTC and AIDCP decisions and are not included in USCG marine
casualty regulations. Regulations for situations involving serious
illness and harassment are described below.
Per the Resolutions, this final rule includes requirements for
vessel owners and operators to contact observer providers and
appropriate government contacts in cases of serious illness, assault,
intimidation, threats, interference, or harassment of observers. NMFS
notes that some of these incidents lead to civil rather than criminal
proceedings and can even involve circumstances that do not create
emergency situations needing a specific or immediate response from the
U.S. Government. The NMFS West Coast Regional Administrator has posted
a list of appropriate contacts for U.S. Government offices as well as
observer providers on the NMFS WCR website: https://www.fisheries.noaa.gov/west-coast/partners/emergency-contacts-vessel-owners-operators-and-observers-longline-and-purse. This website
includes emails and phone numbers, which are not referenced here.
The USCG continues to be the point of contact for other emergency
situations that necessitate an immediate USCG search and rescue, or law
enforcement response. NMFS WCR does not maintain a 24-hour hotline to
handle such emergencies. Thus, in emergency situations that need an
immediate response, vessel owners and operators are encouraged to
contact the nearest U.S. Coast Guard Rescue Coordination Center (RCC)
that can help coordinate with the closest Search and Rescue (SAR)
facility in the area of the vessel: https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Response-Policy-CG-5R/Office-of-Incident-Management-Preparedness-CG-5RI/US-Coast-Guard-Office-of-Search-and-Rescue-CG-SAR/RCC-Numbers/.
In addition, this rule sets forth procedures the vessel owner or
operator
[[Page 29668]]
are required to follow in the event that an observer has a serious
illness or injury. The owner or operator of a fishing vessel of the
United States is required to immediately report serious illness or
injury that threatens the life and/or long-term health or safety of an
observer to the observer provider and a U.S. Government contact.
This rule requires that, in the event that the observer has a
serious illness or injury that threatens his or her life and/or long-
term health or safety, the owner or operator of the fishing vessel
must: (i) Immediately cease fishing operations; (ii) take all
reasonable actions to care for the observer and provide any medical
treatment available and possible on board the vessel, and where
appropriate seek external medical advice; (iii) where directed by the
observer provider, if not already directed by the appropriate U.S.
Government contact, facilitate the disembarkation and transport of the
observer to a medical facility equipped to provide the required care,
as soon as practicable; and (iv) cooperate fully in any official
investigations into the cause of the illness or injury. The regulations
specify that the owner or operator of the fishing vessel must
``immediately cease fishing operations.'' NMFS anticipates that there
may be circumstances where ``immediately cease'' could allow for gear
to be retrieved and NMFS does not encourage abandoning fishing gear.
This rule sets forth procedures the vessel owner or operator are
required to follow in the event that an observer has been assaulted,
intimidated, threatened or harassed. The rule requires that, in the
event that an observer on a fishing vessel of the United States has
been assaulted, intimidated, threatened or harassed, the owner or
operator of the fishing vessel must: (i) Immediately take action to
preserve the safety of the observer and mitigate and resolve the
situation on board; (ii) if the observer or the observer provider
indicate that they wish for the observer to be removed from the vessel,
facilitate the safe disembarkation of the observer in a manner and
place, as agreed by the observer provider, that facilitates access to
any needed medical treatment; and (iii) cooperate fully in any official
investigations into the incident.
In addition to serious illness and harassment cases, both
Resolutions detail a number of requirements for vessel owners and
operators specifically related to vessel operations, notification,
search and rescue procedures, and investigations in the event of death,
injury, serious illness, missing or presumed fallen overboard, or
harassment of an observer. The United States requires U.S. vessel
owners or operators to notify the USCG about marine casualties, which
applies in the event of death, missing or presumed fallen overboard, or
serious injury of an observer. The USCG regulations in 46 CFR part 4
specify requirements for notifications, reporting, and investigations.
Thus, NMFS did not promulgate additional regulations for cases of
death, missing or presumed fallen overboard, or serious injury of an
observer. However, the Resolutions also require that the observer
provider be notified in cases of an observer that dies or goes missing,
and this rule includes requirements for the vessel owner or operator to
notify the observer provider and a Government contact. Therefore, in
the event that an observer dies, is missing or presumed fallen
overboard, the owner or operator of a fishing vessel must immediately
notify a U.S. Government contact and the observer provider.
Public Comments and Responses
NMFS received one comment during the comment period. This comment
was outside the scope of the action and is not relevant to this rule.
Changes From the Proposed Rule
NMFS is making minor changes to the regulatory text in the final
rule from the proposed rule. These changes are intended to make minor
corrections and clarify the regulatory text; NMFS does not consider
these substantive changes. In paragraph (e)(4) in Sec. 216.24, the
numbering of the first subordinate paragraph was corrected, and the
regulatory text was changed to correct the format of a cross reference
to another section number of the regulations. In paragraph (f) in Sec.
300.27 on incidental catch and tuna retention requirements, the
sentence describing the paragraph on silky shark regulations removes
the word ``unintentional'' and adds ``on purse seine vessels.'' This
text was revised because of difficulty enforcing the intentions of
vessel owners or operators. In addition, paragraph (b) in Sec. 300.29,
as it relates to observer safety, is revised to clarify that it is the
``the owner or operator of the'' fishing vessel that must immediately
notify a U.S. Government contact and the observer provider. Similarly,
in paragraphs (c) and (d) in the same section, it is the ``the owner or
operator of the'' fishing vessel that must take the actions described
in the following text.
Classification
After consultation with the Department of State and Department of
Homeland Security, the NMFS Assistant Administrator has determined that
this final rule is consistent with the Tuna Conventions Act of 1950, as
amended, the Marine Mammal Protection Act, and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866. This final rule is not an Executive
Order 13771 regulatory action because this rule is not significant
under Executive Order 12866.
This final rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval. Public
reporting burden for amendments to the West Coast Region Pacific Tuna
Fisheries Logbook and Fish Aggregating Device Form (OMB Control No.
0648-0148) to only require FAD data collection for purse seine vessels
without an observer onboard and require captains provide the observer
with the FAD identification number is estimated to average 1 minute per
form. The requirement to report silky shark surrendered or donated is
also estimated to average 1 minute per form and the reporting related
to observer safety on purses seine vessels is estimated to average 5
minutes per reporting incident. Public reporting burden for amendments
to the supporting statement for the Pacific Islands Region Logbook
Family of Forms (OMB Control No. 0648-0214) for reporting related to
observer safety on longline vessels are estimated to average 5 minutes
per reporting incident. These estimates include time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Regarding the elements of the rule pertaining to prohibiting
retention of silky sharks on longline vessels; there are no new
collection-of-information requirements associated with this action that
are subject to the PRA, and existing collection-of-information
requirements still apply under the following Control Numbers: 0648-0593
and 0648-0214.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a 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: http://www.cio.noaa.gov/services_programs/prasubs.html.
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the
Chief Counsel for Regulation of the Department of
[[Page 29669]]
Commerce certified to the Chief Counsel for Advocacy of the Small
Business Administration that this final rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. Further details on the factual basis for the certification
were published in the proposed rule (85 FR 4250, January 24, 2020) and
are not repeated here. No comments were received regarding the
certification, and none of the changes from the proposed to the final
rule will increase costs to the affected public. Therefore, the
certification published with the proposed rule that states this rule is
not expected to have a significant economic impact on a substantial
number of small entities is still valid. 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: May 11, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 216 and 300
are amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
Subpart C--General Exceptions
0
2. In Sec. 216.24, remove ``Southwest Region'' and add in its place
``West Coast Region'' everywhere it appears and add paragraphs
(e)(4)(i) and (ii) to read as follows:
Sec. 216.24 Taking and related acts in commercial fishing operations
including tuna purse seine vessels in the eastern tropical Pacific
Ocean.
* * * * *
(e) * * *
(4) * * *
(i) Requirements for owners and operators of U.S. purse seine
vessels for reporting and actions in response to observer safety are at
Sec. 300.29 of this title.
(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. In Sec. 300.22, revise paragraph (a)(3)(i) to read as follows:
Sec. 300.22 Recordkeeping and reporting requirements.
(a) * * *
(3) * * *
(i) Reporting on FAD interactions. U.S. purse seine vessel
operators shall provide the observer with the FAD identification code
and, as appropriate, the other information in the FAD interaction
standard format provided by the HMS Branch. U.S. vessel owners and
operators, without an observer onboard, must ensure that any
interaction or activity with a FAD is reported using a FAD interaction
standard format provided by the HMS Branch. The owner and operator
shall ensure that the form is submitted within 30 days of each landing
or transshipment of tuna or tuna-like species to the address specified
by the HMS Branch.
* * * * *
0
5. In Sec. 300.24, revise paragraphs (ff) through (hh) to read as
follows:
Sec. 300.24 Prohibitions.
* * * * *
(ff) Fail to provide information to an observer or record or report
data on FADs as required in Sec. 300.22(a)(3).
(gg) Use a commercial purse seine or longline fishing vessel of the
United States to retain on board, transship, store, or land any part or
whole carcass of a silky shark (Carcharhinus falciformis) in
contravention of Sec. 300.27(e).
(hh) Fail to follow observer safety requirements as specified under
Sec. 300.29.
* * * * *
0
6. In Sec. 300.27:
0
a. Effective June 17, 2020, revise paragraph (e); and
0
b. Delayed indefinitely, revise paragraph (f).
The revisions read as follows:
Sec. 300.27 Incidental catch and tuna retention requirements.
* * * * *
(e) Silky shark restrictions for purse seine vessels. The crew,
operator, and owner of a commercial purse seine or longline fishing
vessel of the United States used to fish for tuna or tuna-like species
is prohibited from retaining on board, transshipping, storing, or
landing any part or whole carcass of a silky shark (Carcharhinus
falciformis) that is caught in the IATTC Convention Area, except as
provided in paragraph (f) of this section.
(f) Exception for silky shark caught and frozen on purse seine
vessels. In the case of a purse seine vessel operating in the IATTC
Convention Area that catches a silky shark that is not seen during
fishing operations and is delivered into the vessel hold, the silky
shark may be stored on board and landed, but the vessel owner or
operator must surrender the whole silky shark to the responsible
government authority present at the point of landing. In U.S. ports the
responsible governmental authority is the NOAA Office of Law
Enforcement divisional office nearest to the port, or other authorized
personnel. If no governmental authorities are available, the whole
silky shark surrendered must not be sold or bartered but must be
donated for purposes of domestic human consumption consistent with
relevant laws and policies. The vessel owner or operator shall report
these incidences to the IATTC Secretariat by recording them in the
IATTC Regional Purse Seine Logbook, or another form identified by NMFS.
* * * * *
0
7. Add Sec. 300.29 to subpart C to read as follows:
Sec. 300.29 Observers.
The following requirements apply to all on-board fisheries
observers required under this subpart, which includes observers on
purse seine, longline vessels, and transshipment carrier vessels, and
while on a fishing trip in the IATTC Convention Area.
(a) Contact information. A full list of U.S. longline and IATTC
purse seine observer providers and U.S. Government contacts for
situations described in paragraphs (b) through (d) of this section is
available at the following website: https://www.fisheries.noaa.gov/west-coast/partners/emergency-contacts-vessel-owners-operators-and-observers-longline-and-purse.
(b) Loss of life. In the event that an observer dies, is missing,
or presumed fallen overboard, the owner or operator of the fishing
vessel must immediately notify a U.S. Government contact and the
observer provider.
(c) Serious illness or injury. The owner or operator of a fishing
vessel of the United States shall immediately report serious illness or
injury that
[[Page 29670]]
threatens the life and/or long-term health or safety of an observer to
the observer provider and a U.S. Government contact. In addition, the
owner or operator of the fishing vessel must:
(1) Immediately cease fishing operations;
(2) Take all reasonable actions to care for the observer and
provide any medical treatment available and possible on board the
vessel, and where appropriate seek external medical advice;
(3) Where directed by the observer provider, if not already
directed by the appropriate U.S. Government contact, facilitate the
disembarkation and transport of the observer to a medical facility
equipped to provide the required care, as soon as practicable; and
(4) Cooperate fully in any official investigations into the cause
of the illness or injury.
(d) Assault, intimidation, threat, or harassment. For reporting
violations in the event that an observer on a fishing vessel of the
United States has been assaulted, intimidated, threatened, or harassed,
the owner or operator of the fishing vessel shall immediately notify
the observer provider and the NOAA Office of Law Enforcement West Coast
Division Duty Officer line at (206) 526-4851 of the situation and the
status and location of the observer. In addition, the owner or operator
of the fishing vessel must:
(1) Immediately take action to preserve the safety of the observer
and mitigate and resolve the situation on board;
(2) If the observer or the observer provider indicate that they
wish for the observer to be removed from the vessel, facilitate the
safe disembarkation of the observer in a manner and place, as agreed by
the observer provider and a U.S. Government contact, that facilitates
access to any needed medical treatment; and
(3) Cooperate fully in any official investigations into the
incident.
[FR Doc. 2020-10407 Filed 5-15-20; 8:45 am]
BILLING CODE 3510-22-P