[Federal Register Volume 81, Number 161 (Friday, August 19, 2016)]
[Rules and Regulations]
[Pages 55376-55380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19796]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 150817722-6703-02]
RIN 0648-BF10


Atlantic Highly Migratory Species; Archival Tag Management 
Measures

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

ACTION: Final rule.

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[[Page 55377]]

SUMMARY: This final rule revises the regulations that currently require 
persons surgically implanting or externally affixing archival tags on 
Atlantic highly migratory species (HMS) to obtain written authorization 
from NMFS, and that require fishermen to report their catches of 
Atlantic HMS with such tags to NMFS. Archival tags are tags that record 
scientific information about the movement and behavior of a fish and 
include tags that are surgically implanted in a fish, as well as tags 
that are externally affixed, such as pop-up satellite archival tags 
(PSAT) and smart position and temperature tags (SPOT). Specifically, 
this final rule removes the requirement for researchers to obtain 
written authorization from NMFS to implant or affix an archival tag but 
would continue to allow persons who catch a fish with a surgically 
implanted archival tag to retain the fish only if they return the tag 
to the person indicated on the tag or to NMFS. Persons retaining such 
fish would no longer be required to submit to NMFS an archival tag 
landing report or make the fish available for inspection and tag 
recovery by a NMFS scientist, enforcement agent, or other person 
designated in writing by NMFS. Any persons who land an Atlantic HMS 
with an externally-affixed archival tag would be encouraged, but not 
required, to follow the instructions on the tag to return the tag to 
the appropriate research entity or to NMFS. This action will affect any 
researchers wishing to place archival tags on Atlantic HMS and any 
fishermen who might catch such a tagged fish.

DATES: Effective on September 19, 2016.

ADDRESSES: NMFS Highly Migratory Species Management Division, 1315 
East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Larry Redd, Craig Cockrell, Tobey 
Curtis or Karyl Brewster-Geisz by phone at 301-427-8503.

SUPPLEMENTARY INFORMATION: 

Background

    Atlantic HMS are managed under the 2006 Consolidated HMS Fishery 
Management Plan (FMP) and its amendments. Implementing regulations at 
50 CFR part 635 are issued under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 
U.S.C. 1801 et seq., and Atlantic Tunas Convention Act (ATCA), 16 
U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce 
(Secretary) to promulgate regulations as necessary and appropriate to 
implement ICCAT recommendations.
    On April 14, 2016 (81 FR 22044), NMFS published a proposed rule 
regarding the regulatory requirements for the placement of ``archival 
tags.'' An ``archival tag'' is defined at Sec.  635.2 as ``a device 
that is implanted or affixed to a fish to electronically record 
scientific information about the migratory behavior of that fish.'' The 
comment period on the proposed rule ended on May 16, 2016.
    Researchers use archival tags because they are a powerful tool for 
tracking the movements, geolocation, and behavior of individual tunas, 
sharks, swordfish, and billfishes. Data recovery from some archival 
tags, particularly those that are surgically implanted into the fish, 
requires that fish be re-caught. Other archival tags, such as PSAT and 
SPOT, which are externally affixed to the fish, are able to transmit 
the information remotely and do not require the fish to be re-caught 
nor do researchers expect the tags to be returned, as generally no 
additional data are gained from their return. Data from archival tags 
are used to ascertain HMS life-history information, such as migratory 
patterns and spawning site fidelity.
    In addition to archival tags, researchers may place conventional 
tags, such as spaghetti or roto tags, acoustic tags, or passive 
integrated transponder (PIT) tags on HMS. These types of tags do not 
record or store any information, and thus are not ``archival'' tags. 
Furthermore, there are some tags, such as some SPOTs, that may be 
archival or may be more acoustic in nature, depending on the needs of 
the researcher. For Atlantic HMS, NMFS does not regulate the placement 
or the collection of these non-archival tags, and this final rule does 
not affect any tags other than archival tags.
    This final rule removes the requirement for researchers to obtain 
written authorization from NMFS to implant or affix an archival tag. 
Additionally, this final rule maintains the regulatory requirement that 
Atlantic HMS caught with a surgically implanted archival tag may be 
retained only on the condition that the surgically implanted tag is 
returned to either the originating researcher or to NMFS. Maintaining 
this regulatory provision creates an incentive to return the surgical 
tags, which need to be physically retrieved to retrieve the data. This 
would afford some assurance to researchers that they would be able to 
retrieve the surgically implanted tags and would not lose their 
investment due to discarded tags, and that the tags would continue to 
contribute to the collection of Atlantic HMS life history and 
biological data. In all other cases (i.e., the fisherman catches an HMS 
with an externally placed archival tag, a conventional tag, an acoustic 
tag, or a PIT tag), NMFS encourages, but does not require, the 
fisherman to return the tag and any information requested directly to 
the researcher or entity noted on the tag itself. All other reporting 
requirements for HMS would still apply. Finally, under this final rule, 
the person retaining an HMS with either an externally affixed or 
surgically implanted archival tag would no longer be required to submit 
an archival tag landing report to NMFS or make the fish available for 
inspection and tag recovery by a NMFS scientist, enforcement agent, or 
other person designated in writing by NMFS.
    This final rule maintains appropriate management and conservation 
requirements, such as requiring the return of the surgically implanted 
archival tag if the fish is retained, for HMS while making the archival 
tagging process more efficient by reducing any time and delay cost to 
researchers associated with the applying for a permit to place archival 
tags on Atlantic HMS. This final rule would reduce the regulatory 
burden for researchers, and allow researchers the opportunity to place 
archival tags on Atlantic HMS during periods of time in which they 
usually would be waiting for NMFS to process their annual permits, 
typically in January or February. NMFS does not expect this action to 
result in increased fishing mortality or increased interactions with 
listed species.

Response to Comments

    During the proposed rule stage, NMFS received 31 written comments. 
The comments received on the proposed rule during the public comment 
period can be found at http://www.regulations.gov/ by searching for 
NOAA-NMFS-2016-0017. A summary of the relevant comments on the proposed 
rule are shown below with NMFS' response.
    Comment 1: NMFS received some comments in support of removing the 
requirement for researchers to obtain written authorization from NMFS 
to implant or affix archival tags. Commenters supporting the removal of 
the written authorization requirement stated that the authorization was 
unnecessary for the application of archival tags on HMS because 
advancements in tagging techniques have resulted in low mortality rates 
and that removing the requirement would maximize opportunities to 
deploy archival tags.
    Response: NMFS agrees that researchers no longer need written

[[Page 55378]]

authorization to implant or affix archival tags. The requirement to 
receive written authorization for placement of archival tags was 
implemented in the 1990s to monitor fish mortality, at a time when 
archival tag technology was fairly new, and most of the archival tags 
had to be surgically implanted into the fish. The mortality rates 
associated with surgically implanting such tags into fish was unknown 
at that time. Currently, researchers primarily use externally affixed 
archival tags because the data collected from those tags are received 
via satellite (in other words, you do not need to re-catch the fish in 
order to collect the data). Furthermore, research has shown negligible 
mortality rates as a result of implanting or affixing archival tags. 
Additionally, NMFS believes that allowing researchers the opportunity 
to place archival tags without written authorization should maximize 
tagging opportunities for researchers, allowing them to fish at times 
of the year when NMFS is processing permit applications the months of 
January and February, and minimize any administrative burden associated 
with applying for such authorization.
    Comment 2: Some commenters opposed removal of the written 
authorization requirement, stating that the change would increase 
fishing pressure on HMS, protected, and endangered species. Those 
individuals felt that the proposed rule would remove the current 
fishing regulations for protected and endangered species, allowing 
fishermen the opportunity to target these species. Some commenters 
expressed concern that removing the requirement for written 
authorization would remove accountability for researchers, fishermen, 
and both state and Federal officials to follow standard scientific and 
regulatory practices. Commenters also expressed a belief that reducing 
the administrative burden on NMFS staff was not an appropriate reason 
to remove the requirement. Commenters further noted that requiring 
written authorization ensures that the party taking part in the 
research is qualified or could be given instructional education on 
handling and tagging techniques.
    Response: As described in the proposed rule, after 20 years of use, 
the mortality rate as a result of placement of archival tags is 
negligible and most research projects are of relatively limited scope 
both in terms of the number of individual fish affected and the number 
of species involved. As such, given the low mortality from placing 
archival or other tags, the large number of alternative tags available 
for use by researchers, and the high cost of obtaining an archival tag 
(approximately $5,000 per tag), NMFS does not agree that removal of the 
requirement to obtain written authorization for archival tags would 
increase fishing pressure on HMS or cause additional mortality. The 
removal of the requirement to obtain written authorization to place a 
tag on HMS in itself is not expected to have any impact on protected 
resources. If researchers are interacting with listed species, they are 
responsible for obtaining appropriate permit coverage under the 
Endangered Species Act (ESA) to ensure that any incidental take during 
research operations is authorized. Additionally, while removal of the 
requirement to obtain written authorization to place archival tags on 
HMS would reduce some administrative burden on NMFS staff, the main 
reduction of administrative burden will be with researchers who would 
no longer need to apply and wait for written authorization before 
tagging fish with archival tags. This is a desirable outcome because 
researchers would have more flexibility to tag in different areas and 
on a greater variety of species during the times they otherwise would 
be waiting for NMFS to issue a permit.
    In regard to continuing to ensure accountability of scientists and 
other researchers, most HMS research activities would likely still 
require authorization under an exempted fishing permit (EFP) or 
scientific research permit (SRP) because other research activities, 
such as sampling gear or possession of HMS, continue to require 
authorization (see 50 CFR 635.32). While researchers could place 
archival tags without written authorization, other research activities 
would likely still need written authorization. Furthermore, there is no 
evidence or apparent incentive for researchers or fishermen to 
circumvent established scientific or regulatory practices when tagging 
HMS or reporting recaptures.
    Comment 3: Several commenters expressed concern that the proposed 
rule could potentially be abused by any fisherman who wishes to apply 
tags, and that the level of enforcement on the responsible application 
of tags would be reduced.
    Response: This final rule is designed to reduce regulatory burdens 
on researchers and is not expected to have impacts on fishermen beyond 
the requirement to return the archival tag. To our knowledge, no 
Atlantic HMS fishermen have ever applied archival tags without 
collaboration with researchers, nor are they likely to do so because 
archival tags are costly and the data they provide require scientific 
expertise and infrastructure to analyze and interpret. Neither 
commercial fishermen nor recreational fishermen are likely to realize 
benefits from buying and then applying archival tags and releasing HMS. 
Both recreational and commercial fishermen have been assisting 
scientists for years by placing conventional tags on HMS that are 
released, and returning tags and providing information on tagged HMS 
that are landed.
    Comment 4: Commenters stated that NMFS should continue to encourage 
but not require the return of archival tags to researchers or NMFS and 
that the regulations requiring tag returns are not needed since the 
fishermen understand the importance and value of archival tags.
    Response: NMFS will continue to encourage the return of any 
archival or other tags to researchers or NMFS by noting the importance 
of tag return in the compliance guides and other outreach materials. 
Furthermore, researchers note in their comments that many fishermen 
already voluntarily return archival tags to researchers. Monetary 
rewards are often offered by researchers for the return of their tags, 
but many fishermen also acknowledge the scientific value of the data 
provided by archival tags, and are generally supportive of fish-tagging 
research. While NMFS is removing the non-surgically implanted archival 
tag landing report requirement under this final rule, the regulations 
will still require fishermen to return surgically implanted archival 
tags from recaptured HMS to the appropriate research entity or NMFS.
    Comment 5: NMFS should not remove the archival tag landing report 
requirement, as it would reduce fishermen accountability allowing them 
to capture HMS without documentation and could have a negative impact 
on scientific data. Removing the landing report could potentially 
result in illegal fishing practices under the blanket of ``scientific 
research.''
    Response: Removing the requirement to report landing a tagged HMS 
to NMFS is not expected to impact reporting rates of these tags between 
fishermen and scientists. Fishermen often voluntarily return tags and 
related information about the recaptured HMS directly to the 
researchers identified on a tag, and researchers have not raised any 
concerns that they may be losing scientific data due to non-reporting 
by fishermen. While NMFS will continue to encourage reporting and 
returns of archival tags from fishermen to

[[Page 55379]]

researchers by noting the importance of tag return in the compliance 
guides and other outreach materials, there is no need to maintain a 
separate archival tag landing report requirement.
    Comment 6: NMFS requested and received various comments regarding 
whether fishermen who catch an HMS with an externally affixed archival 
tag should be required to release the fish if it is otherwise legal to 
land. Some scientists noted that the return of archival tags from 
recaptured HMS can be very valuable to researchers because the physical 
recovery of such tags can provide much more data than non-returned 
tags, and these tags can often be redeployed on other fish. Other 
commenters stated that fish that are tagged with an archival tag should 
be allowed to be landed regardless of the regulations; fish should be 
allowed to be landed if they are legal species within retention sizes; 
fish that have an internally implanted archival tag should be allowed 
to be landed as long as the tag is returned to the researcher or NMFS; 
sharks with externally affixed tags should be released; and all tagged 
fish which are caught should be released.
    Response: After reviewing these comments, NMFS has determined that 
a requirement for fishermen to release any HMS with an externally 
affixed archival tag is not warranted at this time. Under this final 
rule, fishermen may continue to retain any otherwise legal HMS, 
including those with externally affixed archival tags. Fishermen may 
also continue to retain HMS with an internally implanted archival tag 
regardless of any regulatory prohibition, as long as the tag is 
returned to the appropriate research entity or NMFS. If fishermen were 
prohibited from retaining an HMS because it had an externally affixed 
archival tag, it could negatively affect tag return rates and 
cooperation with researchers. In most cases, researchers state that 
they attach greater value to the potential for returned tags than to 
the mandatory release of tagged fish and the continued collection of 
information from having the tagged fish in the water. This is 
particularly true since many externally affixed archival tags only 
collect data for a limited period of time (e.g., 1 week, 1 month, 6 
months, etc.), which is set by the researcher before placing the tag.
    Comment 7: Several commenters requested a public hearing for 
clarification of the proposed rule and to allow the scientific and 
environmental community the chance to provide information and suggest 
alternatives to the proposed rule.
    Response: The purpose and scope of this final rule, which is 
largely administrative in nature, was fully described in the proposed 
rule. NMFS announced the proposed rule via email notification and 
posting on the Atlantic HMS Web site when it published in the Federal 
Register, and provided a 30-day public comment period. The majority of 
the commenters who requested a public hearing were concerned about the 
impact of the removal of a written authorization on the tagging of 
protected or endangered species. As described above, however, this 
final rule does not address the tagging of protected or endangered 
species nor would it affect associated regulations and requirements 
applicable to listed species or increase interactions with such 
species. As such, because their concerns were so far outside the scope 
of the rulemaking, we determined that a public hearing was not 
necessary and that a written response to comments would be adequate and 
appropriate.
    Comment 8: NMFS received a public comment regarding the effects of 
tagging on HMS (specifically sharks). The commenter highlighted issues 
surrounding infection and tag biofouling, and argued that NMFS should 
not implement the proposed measures because they would result in more 
harmful tagging of HMS.
    Response: While available research indicates that any kind of fish 
tagging, including the application of archival tags, could result in 
physiological stress, injury, infection, and other sublethal impacts, 
the majority of scientific evidence indicates that tag-induced 
mortality of HMS is negligible and is not a threat to HMS populations. 
An archival tag is one type of tag placed on HMS, and is a scientific 
tool that has been used to vastly improve understanding of HMS 
movements, habitat use, exposure to anthropogenic impacts, post-release 
mortality rates, and other aspects of biology. Archival tagging studies 
have improved NMFS' ability to conserve and sustainably manage HMS 
populations, and NMFS encourages the responsible continued use of all 
tags, including archival tags.

Classification

    The NMFS Assistant Administrator has determined that the final rule 
is consistent with the 2006 Consolidated HMS FMP and its amendments, 
the Magnuson-Stevens Act, and other applicable laws.
    This final action is not significant for the purposes of Executive 
Order 12866.
    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. 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 Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: August 15, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
635 as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for part 635 continues to read as follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

0
2. Revise Sec.  635.33 to read as follows:


Sec.  635.33  Archival tags.

    (a) Landing an HMS with a surgically implanted archival tag. 
Notwithstanding other provisions of this part, persons may catch, 
possess, retain, and land an Atlantic HMS in which an archival tag has 
been surgically implanted, provided such persons return the tag to the 
research entity indicated on the tag or to NMFS at an address 
designated by NMFS and report the fish as required in Sec.  635.5.
    (b) Quota monitoring. If an Atlantic HMS landed under the authority 
of paragraph (a) of this section is subject to a quota, the fish will 
be counted against the applicable quota for the species consistent with 
the fishing gear and activity which resulted in the catch. In the event 
such fishing gear or activity is otherwise prohibited under applicable 
provisions of this part, the fish shall be counted against the reserve 
or research quota established for that species, as appropriate.

0
3. In Sec.  635.71, revise paragraph (a)(20) to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (20) Fail to return a surgically implanted archival tag of a 
retained

[[Page 55380]]

Atlantic HMS to NMFS or the research entity, as specified in Sec.  
635.33, or fail to report the fish, as specified in Sec.  635.5.
* * * * *
[FR Doc. 2016-19796 Filed 8-18-16; 8:45 am]
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