[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Rules and Regulations]
[Pages 34580-34584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12114]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 220531-0126]
RIN 0648-BJ86


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Implementation of Emergency Decisions of 
the Western and Central Pacific Fisheries Commission

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

ACTION: Final rule.

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SUMMARY: Under authority of the Western and Central Pacific Fisheries 
Convention Implementation Act (WCPFC Implementation Act), NMFS issues 
this rule to make final an interim rule that established a framework to 
implement short-notice decisions of the Commission on the Conservation 
and Management of Highly Migratory Fish Stocks in the Western and 
Central Pacific Ocean (Commission or WCPFC).

DATES: Effective July 7, 2022, we confirm the effective date of June 
11, 2021 of the interim final rule published on June 11, 2021 (86 FR 
31178).

ADDRESSES: Copies of supporting documents prepared for this final rule, 
including the regulatory impact review (RIR), the programmatic 
environmental assessment (PEA), 2019 supplemental environmental 
assessment (SEA), and 2021 SEA, as well as the interim final rule (86 
FR 31178; June 11, 2021), are available via the Federal e-rulemaking 
Portal, at www.regulations.gov (search for Docket ID NOAA-NMFS-2020- 
0150). Those documents are also available from NMFS at the following 
address: Michael D. Tosatto, Regional Administrator, NMFS, Pacific 
Islands Regional Office (PIRO), 1845 Wasp Blvd., Building 176, 
Honolulu, HI 96818.

FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.

SUPPLEMENTARY INFORMATION: 

Background

    On June 11, 2021, NMFS published an interim final rule to establish 
a framework to implement short-notice decisions of the Commission (86 
FR 31178; June 11, 2021). The 30-day comment period for the interim 
final rule closed on July 12, 2021.

[[Page 34581]]

    The Convention on the Conservation and Management of Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean 
(Convention) is concerned with the conservation and management of 
highly migratory fish stocks (HMS) and the management of fisheries for 
HMS. The objective of the Convention is to ensure, through effective 
management, the long-term conservation and sustainable use of HMS in 
the western and central Pacific Ocean (WCPO). To accomplish this 
objective, the Convention established the Commission, which includes 
Members, Cooperating Non-members, and Participating Territories 
(collectively referred to here as ``members''). The United States of 
America is a Member. American Samoa, Guam, and the Commonwealth of the 
Northern Mariana Islands are Participating Territories.
    This final rule is issued under the authority of the WCPFC 
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the Commission. The authority to promulgate regulations 
has been delegated to NMFS. The preamble to the interim final rule 
provides background information on a number of matters, including the 
Convention and the Commission, and the basis for the regulations, which 
are not repeated here.
    Under the interim final rule, NMFS established a process to 
implement short-notice WCPFC decisions requiring immediate action that 
address relevant global or regional health, safety, and security 
concerns, as well as other international emergencies and crises. NMFS 
used that process to implement three short-notice WCPFC decisions 
through temporary specifications that waived specific requirements for 
purse seine observer coverage, purse seine at-sea transshipment, and 
at-sea transshipment observer requirements. NMFS has extended those 
temporary specifications several times, and based on the most recent 
WCPFC decision to extend the waivers for purse seine observer coverage 
and at-sea transshipment observer coverage, has extended those two 
temporary specifications until June 10, 2022 (87 FR 21812; April 13, 
2022).
    Under the process established in the interim final rule at 50 CFR 
300.228, temporary specifications may remain in effect for a period 
less than one year. Due to current COVID-19 conditions, the Commission 
has decided to extend the WCPFC decisions to waive specific 
requirements for purse seine observer coverage and at-sea transshipment 
observer requirements until June 15, 2022, which is beyond the period 
of one year, and the Commission may issue additional extensions of 
those waivers until worldwide COVID-19 conditions improve. Thus, NMFS 
is simultaneously issuing a separate interim final rule (RIN 0648-BL24) 
to extend the time period in which COVID-19 related temporary 
specifications may be effective from less than one year to no later 
than December 31, 2023, after which date the effective period will 
revert back to less than one year.

The Action

    This final rule makes permanent the changes to 50 CFR part 300, 
subpart O, that were made by the interim final rule establishing a 
framework through which NMFS may issue temporary specifications, each 
for a period less than one year in total, inclusive of all extensions, 
that promptly suspend or modify specific existing regulations in 
subpart O. Those regulations were detailed in the interim final rule 
and implement the United States' obligations under the Convention and 
WCPFC decisions.
    As appropriate, temporary specifications may remain in effect up to 
30 days after the expiration of the underlying WCPFC decision to allow 
NMFS adequate time to issue extensions or changes to the temporary 
specification, if needed, without unnecessarily exceeding the timeframe 
of the underlying WCPFC decision.
    Any temporary specification issued pursuant to this framework will 
be published in the Federal Register and will include information 
regarding the basis for the modification or suspension (i.e., a 
description of the WCPFC decision), the temporary modifications or 
suspension to the regulations, and the duration of the changes. Under 
the framework, NMFS may change (including extend, so long as the 
duration of the original temporary specification in addition to any 
extension is less than one year) any temporary specification by 
publishing a new temporary specification in the Federal Register. NMFS 
may revoke any temporary specification by publishing a notification in 
the Federal Register.
    Temporary specifications issued under the framework (found at 50 
CFR 300.228, and as affirmed in this final rule) shall be limited to 
the following:
    (1) Modifications or suspensions of the purse seine observer 
coverage requirements at 50 CFR 300.223(e), including suspensions of 
some or all of the requirements on a fleet-wide or individual vessel 
basis, requiring the carrying of observers other than WCPFC observers, 
requirements to carry electronic monitoring devices in lieu of 
observers, and requirements to collect and submit photographic or 
written information;
    (2) Modifications or suspensions of the regulations at 50 CFR 
300.216(b)(1) prohibiting at-sea transshipment for purse seine vessels, 
including suspensions of some or all of the prohibitions, prior 
notification for an at-sea transshipment, and suspension of the 
prohibitions for particular transshipments; and
    (3) Modifications or suspensions of the regulations at 50 CFR 
300.215(d) and 50 CFR 300.216(b)(2) regarding at-sea transshipment 
observer requirements, including suspensions of some or all of the 
requirements, suspension of some or all of the requirements for 
particular transshipments, requiring the carrying of observers other 
than WCPFC observers, requirements to carry electronic monitoring 
devices in lieu of observers, and requirements to collect and submit 
photographic or written information.

Comments and Responses

    NMFS received one comment letter on the interim final rule from the 
American Tunaboat Association (ATA), which represents U.S. purse seine 
vessels operating in the Pacific Ocean. ATA's letter contained several 
discrete comments. The comments are summarized below, followed by 
responses from NMFS.
    Comment 1: ATA supports the interim final rule and appreciates that 
the rule responds in large part to ATA's comments submitted in response 
to a separate NMFS rulemaking that addressed observer coverage 
requirements during the COVID-19 pandemic.\1\ ATA understands that the 
rule will apply only to suspension of WCPFC purse seine observer 
coverage requirements, suspension of the prohibition against purse 
seine transshipment at sea, and suspension of the at-sea transshipment 
observer coverage requirements. ATA supports NMFS's ability to quickly 
implement short-notice WCPFC decisions on these matters to ensure 
minimal disruption to

[[Page 34582]]

the operations of the U.S. purse seine fleet.
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    \1\ See 86 FR 16307, published March 29, 2021.
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    Response: NMFS acknowledges the comment and agrees with ATA's 
understanding of the rule.
    Comment 2: ATA requests NMFS to ensure that its adoption and 
implementation of the interim final rule and temporary specifications 
comply with the Administrative Procedure Act's (APA) requirements to 
provide the public with notice and an opportunity to comment before 
adopting a rule, and to provide a 30-day delay in the effective date of 
any substantive rule. These requirements ensure that interested and 
affected persons have an opportunity to alert NMFS to potential legal 
and practical problems arising from a rule before it is finalized, and 
allow interested and affected persons to adjust behavior before the 
rule goes into effect. According to ATA, NMFS's framework for adopting 
temporary specifications does not include an opportunity to comment, 
does not include any delay in the effective date of the regulatory 
change, and does not give any indication that NMFS would rely on the 
good cause exceptions in Section 553 of the APA to waive those 
provisions. According to ATA, providing some delay in the effective 
date and some opportunity to comment on the adoption, change, or 
revocation of temporary specifications issued under the framework is 
essential for ensuring that ATA members receive adequate opportunity to 
participate in the process and for ensuring that NMFS implements short-
notice Commission decisions in the most effective manner possible. ATA 
also stated that providing some delay in the effective date and some 
opportunity to comment on the adoption, change, or revocation of 
temporary specifications issued under the framework could strengthen 
the legal viability of NMFS's approach.
    ATA states that NMFS should ensure that members of the regulated 
community receive a fair opportunity to adjust their behavior to comply 
with the adoption, change or revocation of temporary specifications. 
According to ATA, making a framework action immediately effective could 
render compliance impossible or could be extremely costly for ATA 
members. ATA gives the following example. If NMFS were to immediately 
revoke the observer waiver specifications during the middle of an ATA 
member's fishing trip, that member would face the threat of an 
enforcement action for any fishing done without an observer that 
occurred before the members learned of the revocation. If the ATA 
member had real-time notice of the revocation, that member would be 
forced to immediately stop fishing and return to a port where an 
observer could be made available, which could cause economic harm. ATA 
suggests that NMFS alter the interim final rule so that it provides an 
adequate effective-date delay for those actions that would impose new 
or restore preexisting obligations. Alternatively, ATA suggests 
addressing the problematic situation in each temporary specification. 
For example, for the situation described above regarding revocation of 
the purse seine observer waiver, ATA suggested that NMFS could clarify 
in the relevant Federal Register publication that the revocation would 
become effective after an appropriate number of days or on a vessel-by-
vessel basis, as each vessel commences its first post-revocation 
fishing trip.
    ATA states that NMFS should also provide an opportunity for public 
comment on temporary specifications before they become final. According 
to ATA, without some opportunity to comment on temporary specifications 
before they are finalized and go into effect, ATA members may be 
subject to significant sunk costs without any process. For example, the 
framework contemplates the potential adoption of a temporary 
specification requiring the use of electronic monitoring devices in 
lieu of observers. According to ATA, the costs to obtain and install 
such devices would be significant and permanent. If video cameras were 
used, ATA members would want to comment on how footage could be used 
and on enforcement implications of those uses of footage.
    Response: NMFS appreciates ATA's concerns and the suggestions 
provided. The framework process, established at 50 CFR 300.228, allows 
NMFS to implement short-notice WCPFC decisions in an efficient manner, 
but we note that the framework process applies only when time is of the 
essence. Under the framework, NMFS may implement short-notice WCPFC 
decisions through publication of a notification of a temporary 
specification in the Federal Register instead of through changes or 
additions to codified regulations. NMFS may also revoke or modify such 
temporary specifications through notification in the Federal Register, 
rather than through changes or additions to codified regulations. 
However, the new framework process does not create a blanket exemption 
to the APA's section 553 requirements for prior notice and opportunity 
for public comment and for the 30-day delay in the effective date of a 
new rule (5 U.S.C. 553). If NMFS decides to use the framework process 
to publish a temporary specification without providing prior notice or 
opportunity for public comment or the 30-day delay in effective date, 
NMFS would comply with the APA section 553 requirements and would only 
waive those requirements when there is justification to do so, and 
would explain the reasoning for the waiver(s) in the temporary 
specification. Section 553(b)(B) identifies those circumstances in 
which the agency may waive requirements for prior notice and comment: 
when the agency finds, for good cause, that compliance is 
impracticable, unnecessary, or contrary to the public interest. Section 
553(d) identifies those circumstances in which the agency may waive the 
requirement for the 30-day delay in the date of effectiveness, 
including when a substantive rule grants or recognizes an exemption or 
relieves a restriction, when the agency finds good cause, which is 
published with the rule. Examples of circumstances that NMFS believes 
may support such waivers include emergencies, situations where delay 
may frustrate the accomplishment of a statutory purpose, pandemics 
(such as the COVID-19 pandemic), or where the public has already been 
afforded a prior opportunity for public comment. NMFS evaluates the 
need for waiver of prior notice and opportunity for public comment and 
the need for waiver of the 30-day delay in the date of effectiveness 
for each temporary specification issued under the framework on a case-
by-case basis. NMFS believes that Section 553 of the APA provides 
adequate safeguards to ensure that the concerns raised by ATA are 
addressed.
    Comment 3: ATA states that NMFS should clarify the limited scope of 
the interim final rule. According to ATA, the preamble for the interim 
final rule contains potentially conflicting statements regarding its 
scope. Based on the preamble and regulatory language, ATA understands 
that, through the framework process, NMFS can only modify or suspend 
provisions concerning requirements contained in 50 CFR 300.223(e), 50 
CFR 300.215(d), 50 CFR 300.216(b)(1), and 50 CFR 300.216(b)(2), and 
that any modification or suspensions would be limited to implementing 
short-notice Commission decisions, where those decisions address 
relevant global or regional health, safety, and security concerns, as 
well as other international emergencies and crises. However, according 
to ATA, elsewhere in the preamble, NMFS states that the interim final 
rule establishes a framework through which NMFS may

[[Page 34583]]

issue temporary specifications that suspend or modify all existing 
regulations in 50 CFR part 300, subpart O. ATA requests that NMFS 
confirm that the interim final rule is limited to implementing 
Commission decisions related to the specific provisions in 50 CFR part 
300 subpart O identified in the regulatory text rather than all of 50 
CFR part 300 subpart O. In addition, ATA requests NMFS to clarify if 
NMFS foresees expanding upon the specific regulations it can suspend or 
modify using the framework.
    Response: As stated in the preamble to the interim final rule, the 
framework has been established to provide NMFS with a process for 
efficiently modifying or suspending NMFS regulations in response to 
short-notice WCPFC decisions, including intersessional decisions that 
address relevant global or regional health, safety, and security 
concerns, as well as other international emergencies and crises. This 
framework helps ensure that NMFS regulations remain consistent with our 
international obligations, even when those obligations may unexpectedly 
and quickly change in response to global events of an emergency nature. 
The purpose of this framework is not to implement the great majority of 
WCPFC decisions, which NMFS would implement in rules, taking into 
account that those decisions are to enter into effect at least 60 days 
after the decision is made, as specified in Article 20(5) of the 
Convention.
    As stated above (see the ``The Action'' heading above), and as 
detailed at 50 CFR 300.228 (as affirmed in this final rule), temporary 
specifications issued under the framework in this final rule) are 
limited to the following types of actions:
    (1) Modifications or suspensions of the purse seine observer 
coverage requirements at 50 CFR 300.223(e), including suspensions of 
some or all of the requirements on a fleet-wide or individual vessel 
basis, requiring the carrying of observers other than WCPFC observers, 
requirements to carry electronic monitoring devices in lieu of 
observers, and requirements to collect and submit photographic or 
written information;
    (2) Modifications or suspensions of the regulations at 50 CFR 
300.216(b)(1) prohibiting at-sea transshipment for purse seine vessels, 
including suspensions of some or all of the prohibitions, prior 
notification for an at-sea transshipment, and suspension of the 
prohibitions for particular transshipments; and
    (3) Modifications or suspensions of the regulations at 50 CFR 
300.215(d) and 50 CFR 300.216(b)(2) regarding at-sea transshipment 
observer requirements, including suspensions of some or all of the 
requirements, suspension of some or all of the requirements for 
particular transshipments, requiring the carrying of observers other 
than WCPFC observers, requirements to carry electronic monitoring 
devices in lieu of observers, and requirements to collect and submit 
photographic or written information.
    The circumstances in which the framework will be used are narrow. 
Any changes to the regulations at 50 CFR 300.228 would require 
rulemaking action that would be subject to the APA requirements.
    Comment 4: ATA requests that NMFS confirm that two sources of 
authority presently provide for the waiver of observer requirements for 
the purse seine fishery. ATA believes that NMFS's present action 
properly links the duration of the three temporary specifications to 
Commission decisions, which have reflected and will reflect the 
realities facing the U.S. purse seine fishery for observer coverage 
issues. ATA greatly appreciates NMFS's effort here. That said, ATA 
requests that NMFS provide some additional clarification. ATA states 
that the interim final rule is silent on the forward-looking 
relationship between the purse seine fishery and NMFS's observer-waiver 
rule (85 FR 17285; March 27, 2020) and the extension of that rule (86 
FR 16307; March 29, 2021). ATA understands that NMFS now has two 
independent sources of authority by which to waive observer 
requirements for the U.S. purse seine fishery--the observer-waiver rule 
(applicable to multiple fisheries) issued under the emergency authority 
of 16 U.S.C. 1855(c), and the interim final rule (applicable to the 
U.S. purse seine fishery) issued pursuant to the WCPFC Implementation 
Act. Based on this, ATA also understands that its members may presently 
have two current sources of authorization for the waiver of observer 
requirements. It would be helpful if NMFS would confirm whether ATA's 
understanding on these two points is accurate.
    Response: As noted by the commenter, NMFS uses the framework 
process at 50 CFR 300.228 to implement short-notice WCPFC decisions 
regarding the waiver of U.S. purse seine observer coverage requirements 
in response to the COVID-19 pandemic. The NMFS observer-waiver rule 
referenced by the commenter was effective only until March 26, 2022 
(see 86 FR 16307).
    No changes from the interim final rule have been made in this final 
rule.

Classification

    The Administrator, Pacific Islands Region, NMFS, has determined 
that this final rule is consistent with the WCPFC Implementation Act 
and other applicable laws.

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Regulatory Flexibility Act

    As stated in the interim final rule, because prior notice and 
opportunity for public comment were not required for the interim final 
rule by 5 U.S.C. 553, or any other law, the analytical requirements of 
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. 
Therefore, no regulatory flexibility analysis was required and none has 
been prepared. Prior notice and opportunity for public comment were not 
required because there was good cause under 5 U.S.C. 553(b)(B) to waive 
prior notice and the opportunity for public comment on the interim 
final rule and temporary measures. Prior notice and the opportunity for 
public comment would have been contrary to the public interest. When 
the interim final rule was issued, three short-notice WCPFC decisions 
needing immediate implementation had already gone into effect and NMFS 
was implementing those three decisions through the framework process 
established under the interim final rule. In addition, NMFS believed it 
was likely that the WCPFC would agree upon additional short-notice 
decisions, which address relevant global or regional health, safety, 
and security concerns, as well as other international emergencies and 
crises, in the near future. The process established under the interim 
final rule provided NMFS with the ability to carry out the obligations 
of the United States under the Convention, including promptly 
implementing the short-notice decisions of the Commission. NMFS stated 
that it would consider and respond to public comments received on the 
interim final rule, which it has done here.
    For the reasons articulated above, NMFS also found good cause under 
5 U.S.C. 553(d)(3) to waive the 30-day delay in effective dates for the 
interim final rule and the temporary measures.

Paperwork Reduction Act

    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    Accordingly, this final rule affirms (without change) the 
regulatory text of the interim final rule that amended 50

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CFR part 300 and that was published at 86 FR 31178 on June 11, 2021.

    Authority: 16 U.S.C. 6901 et seq.

    Dated: June 1, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2022-12114 Filed 6-6-22; 8:45 am]
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