[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]


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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.

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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]
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