[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Rules and Regulations]
[Pages 50401-50404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18083]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 160104009-6617-02]
RIN 0648-BF65


International Fisheries; Tuna and Tuna-Like Species in the 
Eastern Pacific Ocean; Fishing Restrictions Regarding Mobulid Rays

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is issuing regulations under the Tuna Conventions Act to 
implement Resolution C-15-04 (Resolution on the Conservation of Mobulid 
Rays Caught in Association with Fisheries in the IATTC Convention Area) 
of the Inter-American Tropical Tuna Commission (IATTC). These 
regulations prohibit any part or whole carcass of mobulid rays (i.e., 
the family Mobulidae, which includes manta rays (Manta spp.) and devil 
rays (Mobula spp.)) caught in the IATTC Convention Area from being 
retained on board, transshipped, landed, stored, sold, or offered for 
sale. These regulations also provide requirements for the release of 
mobulid rays. This rule also revises related codified text for 
consistency with the recent amendments to the Tuna Conventions Act. 
This action is necessary for the United States to satisfy its 
obligations as a member of the IATTC.

DATES: This rule is effective August 1, 2016.

ADDRESSES: Copies of the Regulatory Impact Review and other supporting 
documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2016-0035 or by contacting the 
Regional Administrator, William W. Stelle, Jr., NMFS West Coast Region, 
7600 Sand Point Way NE., Bldg. 1, Seattle, WA 98115-0070, or 
[email protected].

FOR FURTHER INFORMATION CONTACT: Rachael Wadsworth, NMFS, West Coast 
Region, 562-980-4036.

SUPPLEMENTARY INFORMATION: 

Background on the IATTC

    On April 22, 2016, NMFS published a proposed rule in the Federal 
Register (81 FR 23669) to implement Resolution C-15-04 adopted by the 
IATTC in 2015. The proposed rule contained additional background 
information, including information on the IATTC, the international 
obligations of the United States as an IATTC member, and the need for 
regulations. The 30-day public comment period for the proposed rule 
closed on May 23, 2016.
    The final rule is implemented under the Tuna Conventions Act (16 
U.S.C. 951 et seq.), as amended on November 5, 2015, by title II of 
Public Law 114-81. The recent amendments provide that the Secretary of 
Commerce, in consultation with the Secretary of State and, with respect 
to enforcement measures, the Secretary of the Department of Homeland 
Security, may promulgate such regulations as may be necessary to carry 
out U.S. international obligations under the Convention, including 
recommendations and decisions adopted by the IATTC. The Secretary's 
authority to promulgate such regulations has been delegated to NMFS.
    This rule implements Resolution C-15-04 for U.S. commercial fishing 
vessels used in the IATTC Convention Area and prohibits any part or 
whole carcass of a mobulid ray caught by vessels owners or operators in 
the IATTC Convention Area from being retained on board, transshipped, 
landed, stored, sold, or offered for sale. The rule provides that the 
crew, operator, and owner of a U.S. commercial fishing vessel must 
promptly release unharmed, to the extent practicable, any mobulid ray 
(whether live or dead) caught in the IATTC Convention Area as soon as 
it is seen in the net, on the hook, or on the deck, without 
compromising the safety of any persons. If a mobulid ray is live when 
caught, the crew, operator, and owner of a U.S. commercial fishing 
vessel must follow the requirements for release that are incorporated 
into regulatory text. Regulations at 50 CFR 300.25 already required 
purse seine vessels to release all rays, except those being retained 
for consumption aboard the vessel, as soon as practicable after being 
identified on board the vessel during the brailing operation. This rule 
revises regulations at 50 CFR 300.25 to specify that there are other 
regulatory release requirements specifically for mobulid rays, as 
described below.
    The rule provides an exemption in the case of any mobulid ray 
caught in the IATTC Convention Area on a purse seine vessel that is not 
seen during fishing operations and is delivered into the vessel hold. 
In this circumstance, the mobulid ray may be stored on board and 
landed, but the vessel owner or operator must show the whole mobulid 
ray to the on-board vessel observer at the point of landing for 
recording purposes, and then dispose of the mobulid ray at the 
direction of the responsible government authority. 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. Mobulid rays that are caught and landed in this manner may 
not be sold or bartered, but may be donated for purposes of domestic 
human consumption consistent with relevant laws and policies.
    In addition, this rule would also revise related codified text for 
consistency with the recent amendments to the Tuna Conventions Act made 
by Title II of Public Law 114-81, effective on November 5, 2015 (Tuna 
Conventions Act of 1950). The rule updates the purpose and scope for 50 
CFR part 300, subpart C, by clarifying that the regulations in the 
subpart are issued under the ``amended'' authority of the Tuna 
Conventions Act of 1950, and that the regulations implement 
``recommendations and other decisions'' of the IATTC for the 
conservation and management of stocks of ``tunas and tuna-like species 
and other species of fish taken by vessels fishing for tunas and tuna-
like species'' in the IATTC Convention Area. The rule also updates the 
definitions description at Sec.  300.21 to clarify that the terms 
defined in Sec.  300.2 include terms defined in the Antigua Convention. 
The rule also revises the description in Sec.  300.25, which states how 
NOAA implements IATTC recommendations and decisions through rulemaking, 
to clarify that the Secretary, in consultation with the Secretary of 
State and, with respect to enforcement measures, the U.S. Coast Guard 
on behalf of the Secretary of the Department of Homeland Security, may 
promulgate such regulations as may be necessary to carry out U.S. 
international obligations.
    In addition, to improve the readability of the regulatory text, 
this action moves several paragraphs of regulatory text related to 
bycatch in Sec.  300.25(e) to a new section (Sec.  300.27) that is 
dedicated to incidental catch and retention requirements. Several 
paragraphs in the prohibitions at Sec.  300.24 are updated for 
consistency with the new section.

Public Comments and Responses

    NMFS received three letters in response to the proposed rule during 
the

[[Page 50402]]

30-day comment period that closed on May 23, 2016. The first letter, 
submitted jointly by three non-governmental organizations (NGOs), 
supported the proposed regulations and also requested that the United 
States work to close the exemption in the IATTC Resolution C-15-04 for 
developing small-scale and artisanal fisheries. NMFS responds to that 
comment below. The second letter, from a member of the public, 
supported the proposed regulations. A third letter, submitted jointly 
by two NGOs, provided seven documents containing biological information 
and further conservation recommendations about mobulid rays in the 
IATTC Convention Area but did not directly express a view on the 
proposed regulations. These documents seem to support the intent of the 
proposed rule.
    Comment: We remain concerned about the broader exemptions allowed 
under Resolution C-15-04 that exempt small scale fisheries from mobulid 
ray retention bans. We urge the United States to work to close 
loopholes and otherwise improve mobulid ray protection, data 
collection, and related capacity building at future meetings of the 
IATTC.
    Response: As described in the preamble of the proposed rule, the 
requirements of Resolution C-15-04 do not apply to small-scale and 
artisanal fisheries that fish exclusively for domestic consumption and 
that are flagged/registered by a developing Member or Cooperating Non-
Member. Because the United States is not a developing nation, this 
exclusion was not implemented in U.S. regulations. NMFS recognizes the 
conservation concerns expressed by the commenter about providing this 
exemption that allows certain other IATTC Members or Cooperating Non-
Members to continue taking mobulid rays. However, NMFS also 
acknowledges that the IATTC took an important first step in 
conservation measures for mobulid rays and that the IATTC can work to 
strengthen these measures in future meetings.

Changes From the Proposed Rule

    In Sec.  300.27(g), the description of responsible government 
authority in U.S. ports was revised to clarify that the responsible 
governmental authority in U.S. ports is the NOAA Office of Law 
Enforcement divisional office nearest to the port. Previously the 
language specified the Western Division and Pacific Island Division, 
which may be too limiting to vessels landing in ports outside of these 
regions. In addition, the language within the same paragraph is revised 
to clarify that the observer should be shown the whole mobulid ray to 
the observer at the point of landing specifically for recording 
purposes rather than for other purposes.

Classification

    The NMFS Assistant Administrator has determined that this rule is 
consistent with the Tuna Conventions Act and other applicable laws. 
This rule has been determined to be not significant for purposes of 
Executive Order 12866. Additionally, although there are no new 
collection-of-information requirements associated with this action that 
are subject to the Paperwork Reduction Act (PRA), existing collection-
of-information requirements still apply under the following Control 
Numbers: 0648-0148, 0648-0214, and 0648-0593. 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 Office 
of Management and Budget control number.
    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 action would 
not have a significant economic impact on a substantial number of small 
entities. On December 29, 2015, the NMFS issued a final rule 
establishing a small business size standard of $11 million in annual 
gross receipts for all businesses primarily engaged in the commercial 
fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) 
compliance purposes only (80 FR 81194, December 29, 2015). The $11 
million standard became effective on July 1, 2016, and is to be used in 
place of the U.S. Small Business Administration's (SBA) current 
standards of $20.5 million, $5.5 million, and $7.5 million for the 
finfish (NAICS 114111), shellfish (NAICS 114112), and other marine 
fishing (NAICS 114119) sectors of the U.S. commercial fishing industry 
in all NMFS rules subject to the RFA after July 1, 2016. Id. at 81194.
    The certification under the Regulatory Flexibility Act was 
developed for this regulatory action at the proposed rule stage using 
SBA's former size standards. Thus, NMFS has reviewed the analyses 
prepared for this regulatory action in light of the new size standard. 
All of the entities directly regulated by this regulatory action are 
commercial finfish fishing businesses. The new standard could result in 
a few less commercial finfish businesses being considered small. 
However, NMFS has determined that the new size standard does not affect 
its underlying analysis and, thus, NMFS has not changed its decision to 
certify this regulatory action.
    As described in the proposed rule, the small entities that would be 
affected by this action are U.S. commercial fishing vessels that may be 
used for IATTC fisheries in the IATTC Convention Area (i.e., purse 
seine, longline, and large-mesh drift gillnet (DGN)). There are two 
components to the U.S. tuna purse seine fishery in the EPO: (1) Purse 
seine vessels with at least 363 metric tons (mt) of fish hold volume 
(size class 6 vessels) that typically have been based in the western 
and central Pacific Ocean, and (2) coastal purse seine vessels with 
smaller fish hold volume that are based on the U.S. West Coast. As of 
July 2016, there are 15 size class 6 purse seine vessels on the IATTC 
Regional Vessel Register. In recent years, size class 6 purse seine 
vessels have landed most of the yellowfin, skipjack, and bigeye tuna 
catch in the EPO. Estimates of ex-vessel revenues for size class 6 
purse seine vessels in the IATTC Convention Area since 2005 are 
confidential and may not be publicly disclosed because of the small 
number of vessels in the fishery. Since 2010, fewer than three coastal 
purse seine vessels targeted tunas; therefore, their landings and 
revenue are confidential. In 2014, eight coastal purse seine vessels 
landed 1,413 mt of tuna (ex-vessel value of about $1,535,000) in west 
coast ports. Participation in the large-mesh DGN fishery has declined 
significantly over the years, from 78 vessels in 2000 to 18 in 2013. 
The large-mesh DGN fishery primarily targets swordfish and to a lesser 
extent common thresher shark. During 2003 to 2014, the average ex-
vessel value of the landings by the large mesh DGN fishery remained 
near $1.8 million per year. U.S. West Coast vessels with deep-set 
longline gear primarily target tuna species with a small percentage of 
swordfish and other highly migratory species taken incidentally. U.S. 
West Coast-based longline vessels fish primarily in the EPO and are 
currently restricted to fishing with deep-set longline gear outside of 
the U.S. West Coast EEZ. Given this restriction, there has been fewer 
than three west coast-based vessels operating out of southern 
California ports since 2005; therefore, landings and ex-vessel revenue 
are confidential. Recently, the number of Hawaii-permitted longline 
vessels that have landed in west coast ports has increased from one 
vessel in 2006 to 14 vessels in 2014. In 2014, 621 mt of highly 
migratory species were landed by Hawaii permitted longline vessels with

[[Page 50403]]

an average ex-vessel revenue of approximately $247,857 per vessel.
    NMFS considers all entities subject to this action to be small 
entities as defined by both the former, lower size standards and the 
revised size standards. Because each affected vessel is a small 
business, this proposed action is considered to equally affect all of 
these small entities in the same manner. This action is not expected to 
change the typical fishing practices of affected vessels or the income 
of U.S. vessels because these vessels do not target mobulid rays, and 
do not commonly catch mobulid rays, even incidentally. The action is 
not expected to have a significant economic impact on substantial 
number of small entities. Accordingly, vessel income is not expected to 
be altered as a result of this rule. This action is not likely to 
increase the economic or record keeping and reporting burden on U.S. 
vessel owners and operators.
    Further details on the factual basis for the certification were 
published in the proposed rule (April 22, 2016, 81 FR 23669) and are 
not repeated here. No comments were received regarding the 
certification. 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.
    The Assistant Administrator for Fisheries has determined that good 
cause exists under 5 U.S.C. 553(d)(3) to waive the requirement for a 
30-day delay in effectiveness. If this rule were subject to the 30-day 
delay in effectiveness, the United States would not be able to satisfy 
its international obligations to implement legally binding IATTC 
Resolution C-15-04 by August 1, 2016, which is the effective date 
specified in the resolution. Additionally, the rule does not require 
the regulated entities to undertake actions (such as purchasing 
equipment, re-writing software, creating new reporting sheets, or 
training in new skills) in order to come into compliance with this rule 
prior to the effective date. As soon as the rule is filed with the 
Office of the Federal Register, notice will be sent to inform members 
of the tuna-fishing industry.

List of Subjects in 50 CFR Part 300

    Fish, Fisheries, Fishing, Fishing vessels, International 
organizations, Marine resources, Reporting and recordkeeping 
requirements, Treaties.

    Dated: July 26, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is amended 
as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
1. The authority citation for part 300, subpart C, continues to read as 
follows:

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


0
2. Section 300.20 is revised to read as follows:


Sec.  300.20  Purpose and scope.

    The regulations in this subpart are issued under the authority of 
the Tuna Conventions Act of 1950, as amended, (Act) and apply to 
persons and vessels subject to the jurisdiction of the United States. 
The regulations implement recommendations and other decisions of the 
Inter-American Tropical Tuna Commission (IATTC) for the conservation 
and management of stocks of tunas and tuna-like species and other 
species of fish taken by vessels fishing for tunas and tuna-like 
species in the IATTC Convention Area.

0
3. In Sec.  300.21, revise the introductory text and add a definition 
for ``Mobulid ray'' in alphabetical order to read as follows:


Sec.  300.21  Definitions.

    In addition to the terms defined in Sec.  300.2, in the Act, the 
Convention for the Establishment of an Inter-American Tropical Tuna 
Commission (Convention), and the Convention for the Strengthening of 
the Inter-American Tropical Tuna Commission Established by the 1949 
Convention between the United States of America and the Republic of 
Costa Rica (Antigua Convention), the terms used in this subpart have 
the following meanings. If a term is defined differently in Sec.  
300.2, in the Act, or in the Antigua Convention, the definition in this 
section shall apply.
* * * * *
    Mobulid ray means any animal in the family Mobulidae, which 
includes manta rays (Manta spp.) and devil rays (Mobula spp.).
* * * * *

0
4. In Sec.  300.24, revise paragraphs (e), (f), (h), (t), (w), and (x) 
and add paragraphs (cc) and (dd) to read as follows:


Sec.  300.24  Prohibitions.

* * * * *
    (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught 
by a fishing vessel of the United States of class size 4-6 using purse 
seine gear in the Convention Area as required under Sec.  300.27(a).
    (f) When using purse seine gear to fish for tuna in the Convention 
Area, fail to release any non-tuna species as soon as practicable after 
being identified on board the vessel during the brailing operation as 
required in Sec.  300.27(b).
* * * * *
    (h) Fail to use the sea turtle handling, release, and resuscitation 
procedures in Sec.  300.27(c).
* * * * *
    (t) Use a U.S. fishing vessel to fish for HMS in the Convention 
Area and retain on board, transship, land, store, sell, or offer for 
sale any part or whole carcass of an oceanic whitetip shark 
(Carcharhinus longimanus) or fail to release unharmed, to the extent 
practicable, all oceanic whitetip sharks when brought alongside the 
vessel in contravention of Sec.  300.27(d).
* * * * *
    (w) Set or attempt to set a purse seine on or around a whale shark 
(Rhincodon typus) in contravention of Sec.  300.27(e).
    (x) Fail to release a whale shark encircled in a purse seine net of 
a fishing vessel as required in Sec.  300.27(f).
* * * * *
    (cc) To retain on board, transship, store, land, sell, or offer for 
sale any part or whole carcass of a mobulid ray, as described in Sec.  
300.27(g).
    (dd) Fail to handle or release a mobulid ray as required in Sec.  
300.27(h).

0
5. In Sec.  300.25, revise paragraph (a), remove paragraph (e), and 
redesignate paragraphs (f) through (h) as (e) through (g), 
respectively.
    The revision reads as follows:


Sec.  300.25  Eastern Pacific fisheries management.

    (a) IATTC recommendations and decisions. The Secretary of Commerce, 
in consultation with the Secretary of State and, with respect to 
enforcement measures, the U.S. Coast Guard, may promulgate such 
regulations as may be necessary to carry out the U.S. international 
obligations under the Convention, Antigua Convention, and the Act, 
including recommendations and other decisions adopted by the IATTC.
* * * * *

0
6. Section 300.27 is added to subpart C to read as follows:

[[Page 50404]]

Sec.  300.27  Incidental catch and tuna retention requirements.

    (a) Tuna retention requirements for purse seine vessels. Bigeye, 
skipjack, and yellowfin tuna caught in the Convention Area by a fishing 
vessel of the United States of class size 4-6 (more than 182 metric 
tons carrying capacity) using purse seine gear must be retained on 
board and landed, except for fish deemed unfit for human consumption 
for reasons other than size. This requirement shall not apply to the 
last set of a trip if the available well capacity is insufficient to 
accommodate the entire catch.
    (b) Release requirements for non-tuna species on purse seine 
vessels. All purse seine vessels must release all shark, billfish, ray 
(not including mobulid rays, which are subject to paragraph (g) of this 
section), dorado (Coryphaena hippurus), and other non-tuna fish 
species, except those being retained for consumption aboard the vessel, 
as soon as practicable after being identified on board the vessel 
during the brailing operation.
    (c) Sea turtle handling and release. All purse seine vessels must 
apply special sea turtle handling and release requirements, as follows:
    (1) Whenever a sea turtle is sighted in the net, a speedboat shall 
be stationed close to the point where the net is lifted out of the 
water to assist in release of the sea turtle;
    (2) If a sea turtle is entangled in the net, net roll shall stop as 
soon as the sea turtle comes out of the water and shall not resume 
until the sea turtle has been disentangled and released;
    (3) If, in spite of the measures taken under paragraphs (c)(1) and 
(c)(2) of this section, a sea turtle is accidentally brought on board 
the vessel alive and active, the vessel's engine shall be disengaged 
and the sea turtle shall be released as quickly as practicable;
    (4) If a sea turtle brought on board under paragraph (c)(3) of this 
section is alive but comatose or inactive, the resuscitation procedures 
described in Sec.  223.206(d)(1)(i)(B) of this title shall be used 
before release of the turtle.
    (d) Oceanic whitetip shark restrictions. The crew, operator, or 
owner of a fishing vessel of the United States used to fish for HMS in 
the Convention Area shall be prohibited from retaining on board, 
transshipping, landing, storing, selling, or offering for sale any part 
or whole carcass of an oceanic whitetip shark (Carcharhinus longimanus) 
and must release unharmed, to the extent practicable, all oceanic 
whitetip sharks when brought alongside the vessel.
    (e) Whale shark restrictions for purse seine vessels. Owners, 
operators, and crew of fishing vessels of the United States 
commercially fishing for tuna in the Convention Area may not set or 
attempt to set a purse seine on or around a whale shark (Rhincodon 
typus) if the animal is sighted prior to the commencement of the set or 
the attempted set.
    (f) Whale shark release. The crew, operator, and owner of a fishing 
vessel of the United States commercially fishing for tuna in the 
Convention Area must release as soon as possible, any whale shark that 
is encircled in a purse seine net, and must ensure that all reasonable 
steps are taken to ensure its safe release.
    (g) Mobulid ray restrictions. The crew, operator, and owner of a 
U.S. commercial fishing vessel is prohibited from retaining on board, 
transshipping, storing, landing, selling, or offering for sale any part 
or whole carcass of a mobulid ray that is caught in the IATTC 
Convention Area, except as provided in the following sentence. In the 
case of any mobulid ray caught in the IATTC Convention Area on an 
observed purse seine vessel that is not seen during fishing operations 
and is delivered into the vessel hold, the mobulid ray may be stored on 
board and landed, but the vessel owner or operator must show the whole 
mobulid ray to the on-board observer at the point of landing for 
recording purposes, and then dispose of the mobulid ray at the 
direction of the responsible government authority. 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. Mobulid rays that are caught and landed in this manner may 
not be sold or bartered, but may be donated for purposes of domestic 
human consumption consistent with relevant laws and policies.
    (h) Mobulid ray handling and release. The crew, operator, and owner 
of a U.S. commercial fishing vessel must promptly release unharmed, to 
the extent practicable, any mobulid ray (whether live or dead) caught 
in the IATTC Convention Area as soon as it is seen in the net, on the 
hook, or on the deck, without compromising the safety of any persons. 
If a mobulid ray is live when caught, the crew, operator, and owner of 
a U.S. commercial fishing vessel must use the release procedures 
described in the following two paragraphs.
    (1) No mobulid ray may be gaffed, no mobulid ray may be lifted by 
the gill slits or spiracles or by using bind wire against or inserted 
through the body, and no holes may be punched through the bodies of 
mobulid ray (e.g., to pass a cable through for lifting the mobulid 
ray).
    (2) Applicable to purse seine operations, large mobulid rays must 
be brailed out of the net by directly releasing the mobulid ray from 
the brailer into the ocean. Large mobulid rays that cannot be released 
without compromising the safety of persons or the mobulid ray before 
being landed on deck, must be returned to the water as soon as 
possible, either utilizing a ramp from the deck connecting to an 
opening on the side of the boat, or lowered with a sling or net, using 
a crane if available. The minimum size for the sling or net must be at 
least 25 feet in diameter.

[FR Doc. 2016-18083 Filed 7-29-16; 8:45 am]
 BILLING CODE 3510-22-P