[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Rules and Regulations]
[Pages 3335-3355]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1087]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 300
[Docket No. 070717350-9936-02]
RIN 0648-AV63
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Initial Implementation of the Western and
Central Pacific Fisheries Convention
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 authority of the Western and
Central Pacific Fisheries Convention Implementation Act (WCPFC
Implementation Act), which authorizes the Secretary of Commerce to
promulgate regulations needed to carry out the obligations of the
United States under the Convention on the Conservation and Management
of Highly Migratory Fish Stocks in the Western and Central Pacific
Ocean (Convention), including implementing the decisions of the
Commission for the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean (WCPFC). The
regulations include requirements related to permitting, vessel
monitoring systems, vessel observers, vessel markings, reporting and
recordkeeping, at-sea transshipment, and boarding and inspection on the
high seas, among others. NMFS has determined that this action is
necessary for the United States to satisfy its international
obligations under the Convention, to which it is a Contracting Party.
It will have the effect of requiring that all relevant U.S. fishing
vessels are operated in conformance with the provisions of the
Convention.
DATES: This final rule is effective February 22, 2010.
ADDRESSES: Copies of supporting documents that were prepared for this
final rule, including the regulatory impact review (RIR) and
environmental assessment (EA), as well as the proposed rule, are
available via the Federal e-Rulemaking portal, at http://www.regulations.gov. Those documents, and the small entity compliance
guide prepared for this final rule, are also available from the
Regional Administrator, NMFS, Pacific Islands Regional Office, 1601
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700. The initial
regulatory flexibility analysis (IRFA) and final regulatory flexibility
analysis (FRFA) prepared for this rule are included in the proposed
rule and this final rule, respectively.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS, Pacific Islands Regional Office
(see contact information above), and by e-mail to David_Rostker@omb.eop.gov or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS Pacific Islands
Regional Office, 808-944-2219.
SUPPLEMENTARY INFORMATION:
Electronic Access
This final rule is also accessible at http://www.gpoaccess.gov/fr.
Background
On May 22, 2009, NMFS published a proposed rule in the Federal
Register (74 FR 23965) that would add regulations at 50 CFR part 300,
subpart O, in order to implement certain provisions of the Convention
and decisions of the WCPFC. The proposed rule was open to public
comment through June 22, 2009.
This final rule is implemented under 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 WCPFC. The authority to promulgate regulations has
been delegated to NMFS.
The proposed rule includes additional background information,
including information on the Convention and the WCPFC, the
international obligations of the United States under the Convention,
and the basis for the proposed regulations.
New Requirements
This final rule establishes the following requirements:
1. Authorization To Fish
Owners or operators of U.S. vessels used for commercial fishing for
highly migratory species (HMS) on the high seas in the Convention Area
will be required to obtain a new NMFS-issued fishing authorization,
called a ``WCPFC Area Endorsement.'' The definition of fishing will
include, consistent with its definition under the WCPFC Implementation
Act, receiving fish from another fishing vessel and bunkering or
otherwise supplying or supporting a vessel that engages in fishing.
Thus, carriers that receive HMS from another vessel, vessels that
bunker vessels used to fish for HMS, and vessels that engage in
operations at sea directly in support of, or in preparation for,
fishing or transshipping by other vessels will also be subject to this
and other requirements of the final rule. This new authorization will
be issued by the Regional Administrator of NMFS, Pacific Islands
Region, supplemental to, and as an endorsement on, the permits issued
under the authority of the High Seas Fishing Compliance Act of 1995
(HSFCA; 16 U.S.C. 5501 et seq.) (hereafter, ``high seas fishing
permits;'' see 50 CFR 300.13). The prerequisites to obtaining a WCPFC
Area Endorsement will be: (1) Having a valid high seas fishing permit
(or simultaneously applying for one); (2) submitting a complete
application (see the next item, ``vessel information''); and (3) paying
the required administrative fee. The application form will be designed
as a supplement to the application for a high seas fishing permit. The
WCPFC Area Endorsement will become void upon expiration, suspension, or
revocation of the underlying high seas fishing permit. The WCPFC Area
Endorsement is also subject to suspension or revocation independent of
the high seas fishing permit. Holding a WCPFC Area Endorsement will
trigger a number of
[[Page 3336]]
other requirements, as described in the elements that follow.
2. Vessel Information
Vessel owners and operators that apply for WCPFC Area Endorsements
will be required to submit to NMFS, in their application forms for
WCPFC Area Endorsements, specified information about the vessel and its
operator (i.e., the master on board and in charge of the vessel) that
is not already collected via the high seas fishing permit application.
This information includes the name and nationality of the vessel
operator (or operators); all communication types used on the vessel
(e.g., single sideband radio, voice Inmarsat, fax Inmarsat, e-mail
Inmarsat, telex Inmarsat, or other type of satellite telephone), along
with the communication service used and the identifying/contact number
for each; the fishing methods used or intended to be used; the vessel's
fish hold capacity, expressed in terms of either cubic meters or short
tons; and the vessel's refrigeration and freezer capacity, including
the types of refrigeration and freezer systems on board, the number of
refrigeration and freezer units of each type, and the total
refrigerating or freezing capacity of each type of system.
In addition, a bow-to-stern side-view photograph of the vessel that
shows the vessel in its current form and appearance and that is no
older than five years will have to be submitted to NMFS. The photograph
can be in either paper or electronic format and must meet certain
minimum specifications in terms of its size and resolution and the
legibility of the vessel markings. Although the international radio
call sign assigned to a given vessel is already collected in high seas
fishing permit applications, an indication of whether or not an
international radio call sign has been assigned to the vessel, and if
so, the call sign itself, will have to be submitted to NMFS by
applicants for WCPFC Area Endorsements. This is because of the
importance under the Convention of a vessel's international radio call
sign (e.g., see paragraph below on ``vessel identification'') and NMFS'
need to verify that the collected information is accurate. WCPFC Area
Endorsement holders will have to submit to NMFS any subsequent changes
to the submitted information within 15 days of the change.
In addition, owners or operators of any U.S. vessel used for
fishing for HMS in the Convention Area in areas under the jurisdiction
of any nation other than the United States (i.e., vessels for which a
WCPFC Area Endorsement will not necessarily be required) will be
required to submit to NMFS information about the vessel, its owners and
operators and any fishing authorizations issued by such other nations.
Specifically, all the information specified in the application for high
seas fishing permits and in the application for WCPFC Area Endorsements
will be required, as well as, for each fishing authorization issued by
a nation or political entity other than the United States, the name of
the nation or political entity, the name of the issuing authority, the
authorization type, the period of validity, the specific activities
authorized, the species for which fishing is authorized, the areas in
which fishing is authorized, and any unique identifiers assigned to the
authorization. Copies of any such fishing authorizations will also have
to be submitted to NMFS. This information will be collected via a new
form (hereafter, ``Foreign EEZ Form'') designed for this purpose, and
vessel owners/operators will be required to submit to NMFS any
subsequent changes to the submitted information within 15 days of the
change.
The collected information referred to above will be incorporated by
NMFS into a record of U.S. fishing vessels authorized to be used for
commercial fishing for HMS in the Convention Area beyond areas of U.S.
jurisdiction. In accordance with the Convention, NMFS will keep this
record updated and share it with the WCPFC, which will combine it with
the records of its other Members and Cooperating Non-Members and make
it publicly available via its Web site and other means.
3. Vessel Monitoring System
Owners and operators of vessels with WCPFC Area Endorsements will
be required to have installed, activate, carry and operate vessel
monitoring system (VMS) units (also known as ``mobile transmitting
units'') that are type-approved by NMFS, and authorize the WCPFC and
NMFS to receive and relay transmissions (also called ``position
reports'') from the VMS unit to the WCPFC and to NMFS. The WCPFC and
NMFS will use the position reports as part of their respective VMS.
Activation of a VMS unit will be required any time the unit is
installed or reinstalled, any time the mobile communications service
provider has changed, and any time directed by NMFS. Activation will
involve submitting to NMFS a report (``activation report'') via mail,
facsimile or e-mail with information about the vessel, its owner or
operator, and the VMS unit, as well as receiving confirmation from NMFS
that the VMS unit is transmitting position reports properly. The VMS
unit will have to be turned on and operating (i.e., transmitting
automated position reports) at all times while the vessel is at sea,
both inside and outside the Convention Area. The VMS unit may be turned
off while the vessel is in port, but only if the vessel operator
notifies NMFS via mail, facsimile or e-mail prior to such shut-down. In
such cases, NMFS must also be notified when the VMS unit is
subsequently turned back on (these two types of notifications are
called ``on/off reports''), and the vessel operator must receive
confirmation from NMFS that the VMS unit is functioning properly prior
to leaving port. In the case of failure of the VMS unit while at sea,
the vessel operator will be required to contact NMFS and follow the
instructions provided by NMFS, which could include, among other
actions: Submitting position reports at specified intervals by other
means, ceasing fishing, stowing fishing gear, and/or returning to port;
and repairing or replacing the VMS unit and ensuring it is operable
before starting the next trip. To facilitate communication with
management and enforcement authorities about the functioning of the VMS
unit and for other purposes, operators of vessels with WCPFC Area
Endorsements will be required to carry on board and continuously
monitor while at sea a two-way communication device capable of real-
time communication with NMFS in Honolulu. For the purpose of submitting
position reports that might be required in the case of VMS unit
failure, vessel operators must also carry on board a communication
device capable of transmitting communications by telephone, facsimile,
e-mail, or radio to the WCPFC in Pohnpei, Micronesia, while the vessel
is on the high seas in the Convention Area.
The vessel owner and operator will be responsible for all costs
associated with the purchase, installation and maintenance of the VMS
unit, and for all charges levied by the mobile communications service
provider as necessary to ensure the transmission of automatic position
reports to NMFS. However, if the VMS unit is being carried and operated
in compliance with the requirements in 50 CFR parts 300, 660, or 665
relating to the installation, carrying, and operation of VMS units, the
vessel owner and operator will not be responsible for costs that are
the responsibility of NMFS under those regulations. In addition, the
vessel owner and operator will not be responsible for the costs of
transmitting the automatic position reports to the WCPFC.
[[Page 3337]]
NMFS publishes separately type-approval lists of VMS units. The
current type-approval lists can be obtained from the NOAA Office of Law
Enforcement, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910;
by telephone at 888-210-9288; or by fax at 301-427-0049.
This final rule is worded so as to avoid duplication with other VMS
requirements, such as those established under the Magnuson-Stevens
Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq.)
and the South Pacific Tuna Act of 1988 (SPTA; 16 U.S.C. 973-973r).
Compliance with the existing VMS requirements at 50 CFR parts 300, 660,
and 665 will satisfy this new requirement, provided that the VMS unit
is type-approved by NMFS specifically for fisheries governed under the
WCPFC Implementation Act, the VMS unit is operated continuously at all
times while the vessel is at sea, the vessel owner and operator have
authorized the WCPFC and NMFS to receive and relay transmissions from
the VMS unit, and the requirements in case of VMS unit failure are
followed.
4. Vessel Observer Program
The operator of a vessel with a WCPFC Area Endorsement will be
required to accept on board and accommodate observers deployed as part
of the WCPFC ``Regional Observer Programme'' (WCPFC ROP) on fishing
trips that are partially or fully in the Convention Area. Such
observers include persons designated by the WCPFC Secretariat, by the
United States or by other Members of the WCPFC. Persons will be
designated as WCPFC observers by the United States or other WCPFC
Members only if the national or sub-regional observer program that
deploys such observers has been authorized by the WCPFC to be a part of
the WCPFC ROP. Once an observer program of NMFS is determined by the
WCPFC to meet specified minimum standards and incorporated into the
WCPFC ROP, relevant data collected in the NMFS program will be
submitted to the WCPFC and maintained and used by the WCPFC as data in
its larger WCPFC ROP.
The preamble to the proposed rule inaccurately stated that the
observer requirements would also apply to vessels used in areas under
the jurisdiction of another Member of the WCPFC. This final rule
clarifies that the observer requirements apply only to vessels that
have, or are required to have, WCPFC Area Endorsements.
It is anticipated that the NMFS observer program operating out of
Honolulu, Hawaii, and Pago Pago, American Samoa, will be among the
first national observer programs to be authorized to be part of the
WCPFC ROP. The NMFS observer program currently has interim
authorization until July 1, 2012, and full authorization is anticipated
after a successful audit of the program. Accordingly, NMFS expects
there to be little, if any, change in the placement of observers on
vessels in the longline fleets based in Hawaii and American Samoa. The
WCPFC Secretariat may place an occasional observer as part of an
auditing process to ensure that national and sub-regional observer
programs are operating up to WCPFC standards.
It is also anticipated that U.S. purse seine vessels operating
under the SPTA will continue to carry observers from the Pacific
Islands Forum Fisheries Agency (FFA) observer program (a sub-regional
observer program). If the FFA is unable to provide observers to meet
increased coverage levels mandated by the WCPFC, those vessels may make
other arrangements to obtain WCPFC-approved observers.
The responsibilities of vessel operators and crew members with
respect to observers will include allowing and assisting observers to
do the following: embark and disembark at agreed times and places; have
access to and use of all facilities and equipment on board that are
necessary to conduct observer duties; remove samples; and carry out all
duties safely. The vessel operator also will be responsible for
providing observers, while on board the vessel, with food,
accommodation and medical facilities of a reasonable standard
equivalent to those normally available to an officer on board the
vessel. In the case of longline vessels in the Hawaii and American
Samoa fleets, however, costs incurred for providing subsistence for
NMFS observers will be eligible for reimbursement, as currently
provided at 50 CFR Part 665.
5. Vessel Identification
Vessels with WCPFC Area Endorsements will be required to be marked
in accordance with the Convention's requirements, which are based on
the FAO Standard Specifications for the Marking and Identification of
Fishing Vessels. Specifically, if assigned an international radio call
sign (IRCS), the port and starboard sides of a vessel's hull or
superstructure, as well as a deck, will have to be marked with the
IRCS; if not assigned an IRCS, they will have to be marked with the
vessel's official number (i.e., USCG documentation number or state or
tribal registration number), preceded by the characters ``USA'' and a
hyphen. In both cases, the specified marking will be the only allowable
marking on the hull or superstructure apart from the vessel's name and
hailing port. The markings will have to be placed so that they are
clear, distinct, uncovered, and unobstructed. Any boats, skiffs, or
other watercraft that are carried on board the vessel also will have to
be marked with the same identifier as the fishing vessel. For some
affected vessels, this marking requirement will conflict with other
existing vessel marking requirements, such as those at 50 CFR 300.14
(under the HSFCA; applicable to vessels used for fishing on the high
seas), 50 CFR 300.173 (under the legislation implementing the U.S.-
Canada Albacore Treaty; applicable to vessels used for fishing under
that treaty), 50 CFR 660.704 (under the MSA; applicable to vessels in
West Coast HMS fisheries), and 50 CFR 665.16 (under the MSA; applicable
to vessels in western Pacific fisheries). Accordingly, with respect to
the vessel identification requirements at 50 CFR 300.14, this final
rule will slightly modify those requirements to make them consistent
with this new requirement. With respect to the vessel identification
requirements at 50 CFR 665.16, NMFS has issued a proposed rule (74 FR
34707; July 17, 2009) to revise those requirements such that they do
not conflict with the requirements of this final rule. NMFS anticipates
issuing the final rule for that action nearly concurrently with this
final rule, in which case there will be no conflict. With respect to
the vessel identification requirements at 50 CFR 300.173 and 660.704,
no regulatory action to revise those requirements has been undertaken
to date, so the vessel identification requirements in this final rule
are written such that they will not apply to fishing vessels subject to
the requirements of either 50 CFR 300.173 or 660.704 until the
conflicts have been reconciled and a notice to that effect has been
published in the Federal Register.
6. Transshipment Restrictions
Offloading fish from a U.S. purse seine vessel or using a U.S.
fishing vessel to receive fish from a purse seine vessel at sea in the
Convention Area will be prohibited. Transshipping at sea is already
regulated for U.S. purse seine vessels licensed under the SPTA.
7. Reporting and Recordkeeping
The owner or operator of any U.S. vessel used for commercial
fishing for HMS anywhere in the Pacific Ocean will be required to
maintain and submit to NMFS information on fishing effort and catch.
The final rule was developed to avoid duplication with other effort
[[Page 3338]]
and catch reporting requirements, particularly those established under
the MSA, the HSFCA, the Tuna Conventions Act of 1950 (16 U.S.C. 951-961
et seq.), the SPTA, and the implementing legislation for the U.S.-
Canada Albacore Treaty, as well as relevant State reporting
requirements. Specifically, compliance with other existing reporting
requirements will satisfy the new reporting requirement established in
this final rule. The main effect of these new reporting requirements is
to collect fishing effort and catch information under the authority of
the WCPFC Implementation Act, which will enable NMFS to meet the
reporting requirements of the WCPFC in accordance with the Convention
and the decisions of the WCPFC. Confidentiality of information will be
protected and handled by NOAA as required under U.S. laws, including
the WCPFC Implementation Act and the regulations established in this
final rule (see element 10 below). Once the information is submitted by
NOAA to the WCPFC, it will be handled in accordance with policies and
procedures adopted by the WCPFC.
8. Compliance With the Laws of Other Nations
A vessel with a WCPFC Area Endorsement will be prohibited from
being used for fishing in areas under the jurisdiction of another
nation unless it holds any license, permit or authorization that may be
required by such nation to do so. When a vessel with a WCPFC Area
Endorsement operates in the Convention Area in areas under the
jurisdiction of a Member of the WCPFC other than the United States, it
will have to be operated in compliance with the laws of that Member.
Additionally, the owner and operator of any U.S. fishing vessel
used in the Convention Area in an area under the jurisdiction of
another Member of the WCPFC, if used for fishing for, retaining on
board or landing HMS, will be required to comply with the relevant laws
of that Member, including any laws related to the use of VMS units.
It will be the responsibility of vessel owners and operators to
ascertain the applicable laws and requirements of WCPFC members.
9. Facilitation of Enforcement and Inspection
The operator and crew of a vessel with a WCPFC Area Endorsement,
when in the Convention Area, will be subject to the following
requirements:
Carry on board any fishing authorizations issued by
another nation or political entity, or copies thereof, and make them
available to specified authorities, depending on the area of
jurisdiction the vessel is in;
Continuously monitor the international safety and calling
radio frequency (156.8 MHz; Channel 16, VHF-FM) and, if equipped to do
so, the international distress and calling radio frequency (2.182 MHz);
Carry on board a copy of the International Code of
Signals; and
When engaged in transshipment, allow and assist
transshipment monitors authorized by the WCPFC (if on the high seas) or
other Members of the WCPFC (if within their areas of jurisdiction) to
inspect the vessel and gather information and samples.
In addition, the operator of any U.S. fishing vessel that is used
for commercial fishing for HMS, when present in the Convention Area in
an area in which it is not authorized to fish (e.g., on the high seas
without a valid WCPFC Area Endorsement or in an area under the
jurisdiction of another nation without an authorization from that
nation to fish in the area), will be required to stow all fishing gear
and equipment so such materials are not readily available for fishing.
Further, the operator of any U.S. fishing vessel (regardless of the
species for which it is used to fish), when on the high seas in the
Convention Area, will be required to accept and assist boarding and
inspection by authorized inspectors of other Contracting Parties to the
Convention and of fishing entities that have agreed to be bound by the
regime established by the Convention, provided that such boarding and
inspection is undertaken in conformance with the WCPFC's adopted
procedures. At present, Chinese Taipei (Taiwan) is the only fishing
entity that has agreed to be bound by the regime established by the
Convention.
10. Confidentiality of Information
As mandated by the WCPFC Implementation Act, the final rule
includes procedures designed to preserve the confidentiality of
information submitted in compliance with the WCPFC Implementation Act
and its implementing regulations. In accordance with the Convention,
the procedures allow for the disclosure of confidential information to
the WCPFC. Once such information is held by the WCPFC, access to the
information will be governed by the policies and procedures adopted by
the WCPFC.
Comment and Responses
Public comments on the proposed rule, organized by subject, are
summarized below, with responses from NMFS.
Authorization to Fish and Vessel Information
Comment 1: NMFS proposes to charge $25 (or $5 per year) for the
WCPFC Area Endorsement. Although this is a small amount relative to
vessel revenues, NMFS does not provide adequate reasoning of why or how
this amount will recoup administrative costs, resulting in the
perception of NMFS attempting to ``nickel and dime'' U.S. fishing
vessels. NMFS should not charge any fees for WCPFC Area Endorsements,
but if NMFS insists, then it should describe in the final rule or EA
how the total amount of monies received from area endorsement
applications would offset administrative costs.
Response: NMFS does not agree that an application fee should not be
charged for WCPFC Area Endorsements. As stated in footnote 63 of the
EA, the cost estimates for the application fee are based on the
administrative cost burden incurred by NMFS, which is derived from
agency practice and experience. The fee has been calculated in
accordance with the NOAA Finance Handbook to recover the administrative
costs of administering the permit program for WCPFC Area Endorsements,
as authorized under section 506 of the WCPFC Implementation Act.
Comment 2: The new information that will be solicited from vessel
owners, including nationality of vessel master, vessel communication
types, type of fishing or method, color photograph of the vessel, and
carrying capacity, including freezer type, capacity and number, and
fish hold capacity, could generate confusion regarding the units of
measurement related to capacity, as well as confusion on the level of
detail of the required information. NMFS should produce a comprehensive
compliance guide for vessel owners to follow.
Response: Clear instructions on the level of detail required, as
well as the measurement units, will be included in the forms used to
collect the required information. The requirements are also explained
in the small entity compliance guide that has been prepared for this
final rule, available at: http://www.fpir.noaa.gov/IFD/ifd_documents_data.html.
Comment 3: In 50 CFR 300.212(g) and 300.213(a) the proposed
regulations call for any changes to vessel information to be reported
to the NMFS Pacific Islands Regional Administrator within 15 days of
the change. This requirement would
[[Page 3339]]
be burdensome; 30 days would be much more manageable.
Response: The proposed 15-day requirement is necessary to satisfy
the provisions of the Convention and decisions of the WCPFC with
respect to the obligations of the United States to notify the WCPFC of
changes to information associated with U.S.-flagged vessels authorized
to fish in the Convention Area. Furthermore, the proposed 15-day
requirement is consistent with the existing, related, 15-day
requirement for changes to application information for permits issued
under the HSFCA (50 CFR 300.13(g)). The requirement at proposed section
300.212(g) relates to application information for a WCPFC Area
Endorsement, which would be issued supplemental to, and as an
endorsement on, a permit issued under the HSFCA.
Vessel Monitoring System
Comment 4: The proposed rule includes a requirement in Sec.
300.219(c)(3)(iii) that prior to leaving port, a vessel owner and
operator must ``receive verbal or written confirmation from NMFS that
proper transmissions are being received from the VMS unit.'' The lack
of availability of staff in the NOAA Office of Law Enforcement, Pacific
Islands Division (``OLE-PID''), may cause an unreasonable loss of
fishing time for fishing vessels, which do not operate on a 9 a.m. to 5
p.m. basis and operate in various time zones. There should be a system
that allows confirmation of VMS unit operation outside the regular
office hours of OLE-PID. One suggestion is to allow a vessel to
contact, and receive confirmation from, a representative of the VMS
unit manufacturer, after which the vessel could contact and receive
confirmation from OLE-PID once it opens for business.
Response: The referenced requirement applies in the case that the
vessel owner and operator have chosen to shut down the VMS unit while
at port or otherwise not at sea. NMFS recognizes that the office hours
of OLE-PID are somewhat constraining, but notes that the owner and
operator of a fishing vessel need not wait until immediately prior to
the port departure time to turn on the VMS unit and submit the on/off
report to NMFS. In order to provide a few additional hours each day for
these communication purposes, NMFS has made a revision to the final
rule such that vessel owners and operators may submit the VMS unit on/
off reports to, and receive confirmations from, either OLE-PID or the
NOAA Office of Law Enforcement's VMS Helpdesk. The contact information
and business hours for the latter are: telephone: 888-219-9228; e-mail:
ole.helpdesk@noaa.gov; 7 a.m. to 11 p.m., Eastern Time.
Comment 5: Under the proposed rule, if a VMS unit fails while the
vessel is at sea, the vessel owner, operator, or designee must contact
OLE-PID by telephone, facsimile, or e-mail at the earliest opportunity
during OLE-PID's business hours, identify the caller and vessel, and
follow the instructions given by OLE-PID, which could include ceasing
fishing, stowing fishing gear, returning to port, and/or submitting
periodic position reports at specified intervals by other means. We
expect that OLE-PID will be reasonable in the instructions it gives in
these cases.
Response: In determining what instructions to give to the operator
of a fishing vessel whose VMS unit has failed while at sea, OLE-PID
would take into account the specific circumstances of the case, and
determine the appropriate course of action consistent with this rule.
Comment 6: Given that albacore troll and baitboats are small, have
little problems with bycatch, enforcement issues, or gear conflicts,
land nearly all their fish on the U.S. west coast and document their
catch in logbooks, and there are few marine protected areas in offshore
regions where U.S. albacore troll vessels operate, how effective and
useful will the required VMS data be?
Response: The United States is obligated, as a Contracting Party to
the Convention, to implement Article 24 of the Convention, which calls
for each WCPFC member to require that its fishing vessels used to fish
for highly migratory fish stocks on the high seas in the Convention
Area use near real-time satellite position-fixing transmitters while in
such areas. In addition, NMFS believes that requiring U.S. albacore
troll vessels to carry VMS units would provide important information
that will aid in scientific and compliance-related purposes.
Comment 7: Why is it proposed that the VMS units have to be turned
on 365 days per year? A declaration of departure and a check to see if
the VMS unit is on should serve the purpose.
Response: Under the proposed rule, as well as this final rule, the
VMS unit can be shut down while the fishing vessel is at port or
otherwise not at sea, provided that NMFS is notified both in advance of
the shut-down and upon turning the VMS unit back on, and that prior to
subsequently leaving port, the vessel owner and operator receive verbal
or written confirmation from NMFS that proper transmissions are being
received from the VMS unit.
Comment 8: If the United States is requiring VMS units under the
Convention then NOAA should pay for installation as in other fisheries.
The U.S. albacore fleet is in economic distress and is an important
component of the coastal rural economy; any new fees at this time would
be detrimental to the family-owned U.S. albacore fleet and community at
this time.
Response: NMFS is indeed requiring that VMS units be carried in
order to implement the provisions of the Convention, and NMFS
recognizes that the proposed VMS requirements would bring new costs to
businesses that operate HMS fishing vessels in the Convention Area.
NMFS does not agree that the U.S. Government is responsible for
covering the cost of coming into compliance with this rule, but notes
that it has conducted an analysis of the impact of this rule on small
entities, in accordance with the Regulatory Flexibility Act (see IRFA
and FRFA). In addition, fishermen may be eligible for full or partial
reimbursement for the required purchase costs of authorized VMS units,
to the extent appropriations allow. Questions concerning reimbursement
eligibility can be directed to the NOAA Office of Law Enforcement VMS
Support Center at 888-219-9228, and further information is available on
the Web site of the Pacific States Marine Fisheries Commission: http://www.psmfc.org/Vessel_Monitoring_System.
Comment 9: According to the proposed rule and EA, 73 vessels would
have to buy, install, and maintain VMS units as well as pay for VMS
transmission costs. This would cost approximately up to $1,775 [per
vessel] per year or $7,100 over the course of four years, which is a
VMS unit's general lifespan. It does not make sense to break out the
VMS unit cost by year, as the VMS unit itself costs approximately
$4,000. The EA does not describe whether NMFS has pursued government
funding to cover these costs for the 73 affected vessels. NMFS should
find government funding to make this requirement equitable amongst
fishery participants--the Western Pacific Regional Fishery Management
Council strongly believes that NMFS should pay for the VMS costs for
the two longline vessels operating out of the Commonwealth of the
Northern Mariana Islands (CNMI), as well as for the albacore troll
fleet. Furthermore, the proposed rule would require albacore trolling
vessels to continue to transmit their VMS positions while fishing in
the eastern Pacific Ocean (EPO). This seems particularly onerous and
costly for this
[[Page 3340]]
fleet, especially since the proposed rule is in response to WCPFC
measures. The proposed rule would also require that vessel operators
provide NMFS with a notice when they power down in port and shut off
power supply to their VMS unit. Vessel operators would also have to
inform NMFS that they have powered back on and that they are going on a
fishing trip. As this is not current practice, NMFS will need to
develop a detailed outreach plan to inform fishery participants.
Response: With respect to breaking out the VMS unit costs by year,
NMFS annualized the estimated cost of purchasing and installing a VMS
unit in order to express expected compliance costs in terms that could
be compared with, and added to, the compliance costs of other aspects
of the proposed requirements--that is, in annual terms (the annualized
cost of a VMS unit that costs $4,000 to purchase and install and that
has a lifespan of four years would be about $1,000).
With respect to who should pay the costs of the VMS-related
requirements, NMFS does not agree that NMFS or the U.S. Government is
responsible for covering the costs, but notes that vessel owners might
be eligible for reimbursement for the cost of VMS units under a program
administered by the NOAA Office of Law Enforcement (for more
information, see the response to comment 8, above).
With respect to the costs and burden of having to transmit position
reports via VMS while a vessel is fishing in the EPO, outside the
Convention Area, NMFS considered alternatives that would not require
such reporting (see the IRFA, FRFA, EA, and RIR, particularly
Alternatives B and C in the latter two). Position reports will cost
about $1.50 per day, so the annual VMS-related compliance costs of
Alternative B, which would require position reports to be transmitted
only while the vessel is on the high seas in the Convention Area, would
be about $105-$285 less than under the proposed rule for albacore troll
vessels, depending on where they fish. However, allowing the VMS unit
to be turned on and off depending on where at sea the vessel is would
make it more difficult to ensure that position reports are transmitted
while in the Convention Area, which would reduce the effectiveness of
the VMS. For that reason, NMFS believes that the benefits of the
preferred alternative of requiring position reports everywhere at sea
outweigh the burden.
With respect to informing fishery participants about these new VMS-
related requirements, NMFS does not intend to prepare an ``outreach
plan,'' but it has prepared a small entity compliance guide, available
at http://www.fpir.noaa.gov/IFD/ifd_documents_data.html, for this
purpose, and NMFS will use various means to reach out to fishery
participants to ensure they are aware of the new requirements.
Vessel Observer Program
Comment 10: The Western Pacific Regional Fishery Management Council
strongly believes that NMFS should pay for the observer costs for the
two longline vessels operating out of the CNMI, as well as for the
albacore troll fleet.
Response: NMFS has analyzed the costs of accommodating observers in
the IRFA and has assessed its impacts on small entities. NMFS believes
that these costs are reasonable and properly should be borne by vessels
that accept the benefits of commercial fishing for HMS in the
Convention Area.
Comment 11: The EA is unclear on why alternatives were not
identified or considered for implementation of the WCPFC observer
program. The VMS category considered alternatives that would trigger
VMS requirements if certain temporal and spatial characteristics were
met. However, similar alternatives were [not] considered for the vessel
observer program category. The EA does not provide any explanation on
why NMFS has no discretion in implementing the WCPFC observer program.
The observer requirements could be especially onerous for U.S. albacore
fishermen who fish on relatively small vessels, and no reason is
provided for potentially requiring them to carry observers when they
may not be fishing in the Convention Area. NMFS should include and
analyze this alternative that would avoid this situation in the Final
EA.
Response: The observer requirements in the rule implement the
specific requirements of the WCPFC ROP set forth in Article 28 of the
Convention. The requirements will apply to any U.S. vessel used for
commercial fishing for HMS on the high seas in the Convention Area
(i.e., a vessel that has, or that is required to have, a WCPFC Area
Endorsement). As explained below, NMFS has clarified in this final rule
that fishing vessels with WCPFC Area Endorsements will be required to
accept and accommodate observers only on trips that take place
partially or fully in the Convention Area. The compliance costs for the
observer requirements have been estimated accordingly, as described in
the RIR and IRFA and summarized in the EA.
Chapters 1 and 2 of the EA set forth the discretionary provisions
of the rule and the alternatives analyzed in the EA, while Appendix I
of the EA describes the non-discretionary provisions of the rule. NMFS
characterized the discretionary provisions as those for which
reasonable and feasible alternatives could be considered and analyzed.
As discussed in more detail in the response to Comment 27, below, the
EA discussed the environmental impacts that could be caused by the non-
discretionary provisions of the rule as part of the cumulative impacts
analysis. The purpose of the rule is for NMFS to develop and promulgate
domestic fishery regulations to implement the provisions of the
Convention that are ready for implementation, while the need for the
rule is to satisfy the obligations of the United States under the
Convention. Thus, alternatives that would impose requirements on vessel
owners and operators that would go beyond the requirements specified
under the Convention would be outside the scope of this rule.
Correspondingly, alternatives that would impose requirements on vessel
owners and operators that would be less restrictive than the
requirements specified under the Convention would not meet the purpose
of and need for the rule. NMFS did consider alternatives for the VMS
requirements that would apply on broader temporal and spatial scales
than the VMS requirements specified in the Convention. However, these
alternatives were considered primarily in terms of their capability to
enhance the enforcement of and compliance with the VMS requirements
specified in the Convention, concerns not applicable to the observer
requirements. Alternatives to the observer requirements set forth in
the rule, such as an alternative that would require vessels with WCPFC
Area Endorsements to carry observers when operating outside of the
Convention Area, or an alternative that would allow particular vessels
to operate without observers, would either exceed the scope of the rule
or not meet the purpose of and need for the rule.
Comment 12: With respect to the proposed vessel observer
requirements, a clear list of questions that observers may
appropriately ask should be developed and provided to vessel
management, vessel operators, and observers. The proposed rule spells
out the responsibilities of vessel operators and crew with respect to
accommodating observers, but little information is provided on the
expected
[[Page 3341]]
behavior and responsibilities of observers.
Response: This final rule does not establish any new reporting
requirements with respect to WCPFC observers.
With regard to the expected behavior and responsibilities of
observers, under the WCPFC ROP, WCPFC observers must be trained to
specified minimum standards, and they are obligated to behave and
perform in conformance with principles and guidelines specified in the
WCPFC Conservation and Management Measure for the Regional Observer
Programme (Conservation and Management Measure 2007-01, available at:
http://www.wcpfc.int/conservation-and-management-measures). In the case
that a WCPFC observer is deployed as part of a NMFS observer program,
NMFS would work to ensure that the observer behaves and performs in
conformance with those principles and guidelines. If the WCPFC observer
is deployed under some other program, such as the FFA observer program,
NMFS would work with the personnel in that program, as well as in the
WCPFC, to ensure, to the extent possible, that that program's observers
behave and perform in conformance with the principles and guidelines
established in the WCPFC ROP.
Comment 13: In order to provide timely feedback to vessel
operators, which would improve their observer responsibilities,
observers should be debriefed at the end of each fishing trip, such as
by NMFS staff in the presence of the vessel captain.
Response: NMFS agrees that debriefings are important and should be
an element of the WCPFC ROP. However, WCPFC observers are not
necessarily deployed by NMFS or otherwise in the employ of the U.S.
Government, so NMFS is not able to mandate that observer debriefings
occur or that vessel captains be allowed to attend such debriefings.
Instead, such provisions would have to be incorporated into the WCPFC
ROP, the applicable provisions of which NMFS would then implement as
needed. As part of U.S. delegations to the WCPFC, NMFS will keep this
comment under consideration as the WCPFC further develops the WCPFC
ROP.
Comment 14: The cost of carrying an observer is estimated in the
IRFA to cost $20 per day, which, at a 5% coverage rate, would total
$350 per trip, depending on the length of the trip. But because
albacore vessels operating west of 150[deg] W. long. would be at sea
for 25 to 100 days, the cost would be more like $400 to $2,000 per
trip. These costs should be clarified and a cap of $350 per trip should
be considered.
Response: It is stated in the IRFA that at a daily cost of $20, a
5% coverage rate, and 170 to 350 days at sea per year, the annual (not
per-trip) cost would be $170 to $350. This is an estimate of average
annual costs; the cost would be greater in a year in which a vessel was
required to carry an observer on more than 5% of its sea-days, and the
cost would be less in a year in which the vessel was required to carry
an observer on less than 5% of its sea-days. The estimated cost of an
observed trip 100 days long would indeed be about $2,000, as indicated
by the commenter. NMFS believes it to be appropriate that vessel owners
and operators bear the entirety of these costs and that a cap is not
appropriate.
Comment 15: Most albacore vessels are small compared to longline
and purse seine vessels; a typical vessel operating west of 150[deg] W.
long. would be 50-100 feet in length and have a crew of 2-3 persons;
most of the vessels in the 50-65-foot range have limited space for
observers, especially on extended trips.
Response: NMFS recognizes that some fishing vessels have limited
space and small crew sizes. If NMFS determines that deploying an
observer on a particular vessel would compromise the safety of the
observer or the vessel crew, it would not deploy the observer.
Comment 16: Considering that albacore troll vessels may be at sea
for 25 to 100 days at a time and operate in a fishery with virtually no
environmental or regulatory impacts, how practical is it to carry an
observer?
Response: One of the purposes of deploying observers under the
WCPFC ROP is to gather information that can be used to characterize
fishing activities and their impacts on living marine resources. As
more information is gathered and better characterizations are developed
in a given fishery, such as the albacore troll fishery, NMFS expects
that the coverage rate in that fishery would be adjusted by the WCPFC
accordingly.
Comment 17: Albacore troll vessels operate at least 7-10 days away
from any harbor and travel at only 7-9 knots; aborting a trip because
of a health or other problem with an observer would be problematic; who
would reimburse the vessel for potentially two to three weeks of lost
time?
Response: NMFS recognizes that there may be instances in which the
presence of an observer on board a fishing vessel could influence the
course of a fishing trip. NMFS, however, believes that these
occurrences will be rare. Accordingly, the final rule does not include
any provisions for reimbursing or otherwise compensating vessel owners
or operators for any losses incurred in such instances.
Vessel Identification
Comment 18: The proposed vessel identification requirements, which
in the case of a vessel that has not been assigned an international
radio call sign require that the vessel's Federal, State or other
documentation number be preceded by the letters ``USA'', might be a
problem for some smaller albacore vessels because of space,
particularly given that under the U.S.-Canada Albacore Treaty U.S.
vessels are already required to put a ``U'' after the vessel's U.S.
Coast Guard Documentation number or state registration number.
Response: The rule specifies minimum heights of the letters and
numbers to be marked on the vessel that are proportional to the length
of the vessel. The rule also specifies minimum widths of strokes,
minimum hyphen lengths, and minimum sizes of the spaces between letters
and numbers, all of which are expressed in terms of the letter height.
In other words, the size specifications for the vessel markings
explicitly take boat length into consideration.
It should also be noted that the vessel identification requirements
under the U.S.-Canada Albacore Treaty (at 50 CFR 300.173) conflict with
the vessel identification requirements established in this rule, and
because of that, the requirements in this rule will become effective
only when the requirements at 50 CFR 300.173 have been revised so as to
remove the conflict.
Transshipment Restrictions
Comment 19: The proposed rule's prohibition on purse seine
transshipments at sea is appropriate. However, NMFS should provide
information on the impact of the proposed rule's prohibition on purse
seine transshipments at sea and also describe if the U.S. fleet has
historically transshipped, including the locations of such
transshipments, in past years.
Response: As described in the IRFA and RIR, U.S. purse seine
vessels are already subject to substantial restrictions on at-sea
transshipments under the SPTA, and U.S. purse seine vessels
consequently do not, in practice, transship at sea. Accordingly, this
requirement is not expected to bring a new compliance burden on
affected fishermen or otherwise cause any impacts on purse seine
transshipments at sea.
[[Page 3342]]
Reporting and Recordkeeping
Comment 20: The proposed rule would require any U.S. commercial
fishing vessel fishing for HMS anywhere in the Pacific Ocean to submit
catch and effort information to NMFS. The preamble to the proposed rule
indicates that these reporting requirements are already met by
reporting requirements established under the MSA, the HSFCA, the Tuna
Conventions Act of 1950, the SPTA, the implementing legislation for the
U.S.-Canada Albacore Treaty, as well as relevant State reporting
requirements. The proposed rule and EA do not include detailed
information to verify NMFS' indication that this is applicable to 5,000
vessels, nor do they discuss in detail how NMFS is currently obtaining
this important information.
Response: The proposed rule and EA include what NMFS believes to be
sufficient detail to explain the proposed requirements and their basis
and to assess their impacts. The rule at 50 CFR 300.218 details the
specific regulations that contain the applicable catch and effort
reporting requirements.
Compliance With the Laws of Other Nations
Comment 21: The proposed rule's requirement for owners and
operators to comply with laws of other nations is appropriate. However,
the EA does not provide any current or historical information on the
number of U.S. vessels that fish in the exclusive economic zones of
other member nations. To get a better understanding on the issue, the
Final EA should include this information.
Response: Annex III, Article 2 of the Convention sets forth the
specific provisions for complying with national laws that are being
implemented in this rule. Providing current or historical information
on the number of U.S. vessels that fish in the exclusive economic zones
of other WCPFC members in the EA would not provide information relevant
to the analysis or affect the proposed action. See the IRFA and FRFA
for estimates of the numbers of vessels and small entities to which
this requirement will apply.
Facilitation of Enforcement and Inspection
Comment 22: The proposed rule states that the operator of any U.S.
fishing vessel must accept and assist boarding and inspection by
contracting parties of the WCPFC. As there are U.S. vessels that have
Pacific Remote Island Areas bottomfish, lobster, and troll permits,
NMFS should provide information to these vessel operators so that they
are aware of potential boarding and inspection by non U.S. parties. The
final rule and Final EA should describe this outreach as well as the
number and type of other U.S. fishing vessels that could be subject to
non-U.S. boarding and inspection.
Response: NMFS will endeavor to ensure that all affected U.S.
fishing vessels are aware of this new requirement, such as by making
copies of this final rule and its associated small entity compliance
guide available to affected permit holders.
Comment 23: In the case of a high seas boarding and inspection of a
U.S. vessel, NMFS or the U.S. Coast Guard should establish and maintain
communication with the U.S. vessel during the boarding and inspection
and should also follow up with the vessel afterwards to ascertain if
any problems occurred. NMFS should also provide guidelines for U.S.
vessel operators to follow in the event of a boarding on the high seas
by a WCPFC member nation.
Response: U.S. Government entities such as NMFS and the U.S. Coast
Guard will establish and maintain communications with U.S. vessels as
required under applicable laws and in accordance with agency policies
and practices. This rule establishes the requirements with which U.S.
vessel operators must comply in the event of a boarding and inspection
undertaken pursuant to WCPFC procedures. These requirements are also
explained in the small entity compliance guide prepared for this rule,
available at http://www.fpir.noaa.gov/IFD/ifd_documents_data.html.
Confidentiality of Information
Comment 24: The proposed rule and the EA offer no details on how
the proposed procedures regarding the confidentiality of information
vary or are consistent with current procedures, what specific
procedures will be followed, or what specific information will be
protected. Without this information, it is not possible to comment on
this issue. All information submitted by or collected from vessel
owners, operators, or crew must be treated as confidential business
information and not released in any manner that reveals the identities,
operations, or fishing locations of any individual vessel. Fishing
operations, locations, and catches are considered to be proprietary
business information and must be treated as such. Furthermore, the EA
should discuss the current status of agreements within the WCPFC with
respect to confidential information.
Response: NMFS does not believe that any of this further
information was or is needed in the proposed rule or the EA. The
procedures established in this rule regarding the confidentiality of
information are consistent with, and implement, the requirements of the
WCPFC Implementation Act, specifically section 506(d). The provisions
of that section are substantially similar to the information
confidentiality provisions of the MSA. Accordingly, the procedures
established in this rule are substantially similar to the procedures
established under the MSA (see 50 CFR part 600, subpart E), but
tailored to conform to the provisions of the WCPFC Implementation Act.
With respect to agreements with the WCPFC, there are no bilateral
agreements between the U.S. Government and the WCPFC with respect to
confidential information, such as an agreement that would prevent
public disclosure of the identity or business of any person, as
referred to in section 506(d)(1)(B) of the WCPFC Implementation Act.
However, information held by the WCPFC is subject to rules and
procedures concerning the protection of, access to, and dissemination
of WCPFC-held data. These rules and procedures are available at: http://www.wcpfc.int/guidelines-procedures-and-regulations.
Other
Comment 25: The definition of ``fishing'' should not include
activities that take place in port, such as transshipping. The proposed
definition, which would include transshipment, could improperly cause
days in port to be counted against available fishing days.
Response: The definition of ``fishing'' in the regulations must be
consistent with the definition in the WCPFC Implementation Act, which
specifies that ``fishing'' includes transshipment, but only ``at sea.''
Accordingly, NMFS has revised the definition of ``fishing'' in the
final rule to clarify that it includes transshipment, but only at sea.
Comment 26: Carriers and refueling vessels should not be treated as
fishing vessels in virtually all ways; the United States should be
careful to not impose more regulations on these vessels than are
required; we hope the United States will continue to negotiate
reasonable working arrangements for these vessels.
Response: The definition in this rule of ``fishing vessel''
includes carriers and bunkering and other support vessels, consistent
with the definition of ``fishing vessel'' in the WCPFC Implementation
Act. The scope of the regulations established in this rule as they
relate to carriers and bunkers is consistent with the provisions of the
Convention and
[[Page 3343]]
the decisions of the WCPFC. NMFS, as part of U.S. delegations to the
WCPFC, will continue to promote conservation and management measures
that include appropriate and reasonable requirements for carriers and
bunkers.
Comment 27: Overall, the EA should be improved to discuss the
impact of the ``non-discretionary'' obligations.
Response: The EA addressed the ``non-discretionary'' provisions of
the rule as part of the cumulative impacts analysis, as specified in
Section 4.2.13 of the EA. The non-discretionary provisions would impose
a financial burden on fishermen that is minor relative to the total
gross revenue earned by each fishing vessel. Table 40 of the EA details
this financial burden. Accordingly, the financial burden of the non-
discretionary provisions in addition to the financial burden imposed on
fishermen from the discretionary provisions, would enhance the
likelihood and/or magnitude of the expected environmental impacts of
the discretionary provisions of the rule (which are detailed in the
EA), but only slightly so.
Comment 28: Table 41 of the EA indicates that NMFS contacted the
Western Pacific Regional Fishery Management Council (Council) for
information, but the Council has no record of this.
Response: As indicated in Section 1.3 of the EA, NMFS published a
Notice of Intent (NOI) to prepare the EA in the Federal Register on
February 26, 2007. During the time between the publication of the NOI
and issuance of the EA, NMFS informally discussed the scope and
contents of the EA with Council staff who have NEPA expertise. Thus,
NMFS believed it appropriate to list the Council as a party that was
contacted for information in Table 41 of the EA.
Comment 29: It is vital to the survival of the U.S. purse seine
fleet that the United States negotiate measures in regional fisheries
management organizations (RFMO) that impose a comparable burden on all
participants in the fishery, and that U.S. fishermen do not bear an
unfair amount of the conservation burden. Furthermore, it is critical
to the survival of the U.S. purse seine fleet that domestic regulations
implementing RFMO measures not be significantly more burdensome on the
U.S. fleet than those imposed on the fleet's foreign competitors. Also,
it is the responsibility of the U.S. Government to ensure that other
governments implement substantially similar rules and regulations, and
the U.S. Government should promptly give notice to the appropriate RFMO
of any shortcomings in the regulations and enforcement by other member
countries of the RFMO.
Response: This comment does not pertain to the proposed rule
itself. NMFS, as part of U.S. delegations to the WCPFC and other RFMOs,
shares the view that all participants in affected fisheries should
share comparable burdens when seeking to achieve conservation and
management objectives, and NMFS applies this principle in its role as
part of U.S. delegations to the WCPFC and other RFMOs. As part of such
U.S. delegations, NMFS routinely endeavors to determine whether all
RFMO members are satisfying their obligations to implement the
decisions of the RFMOs, and to alert the RFMOs, as appropriate, about
any shortcomings in such implementation.
Changes From the Proposed Rule
In the proposed regulations, regulatory instruction (3) said that
``Subpart O, consisting of Sec. Sec. 300.210 through 200.222, is added
to part 300 to read as follows:'' The instruction was meant to read ``*
* * consisting of Sec. Sec. 300.210 through 300.222 * * *'' and the
corresponding instructions in this final rule are corrected
accordingly.
The proposed rule that led to this final rule would have
established a new subpart O in part 300 of title 50 of the Code of
Federal Regulations, titled ``Western and Central Pacific Fisheries for
Highly Migratory Species.'' However, on August 4, 2009, after
publication of that proposed rule, NMFS published in the Federal
Register a final rule to implement certain decisions of the WCPFC (74
FR 38544). That final rule (called here the ``WCPFC purse seine rule'')
established subpart O in part 300 of title 50, including some of the
definitions and certain other regulations that would have been
established in the proposed rule for this action. Consequently, the
regulations in this final rule are written as amendments to the
sections in subpart O, and since some of the regulations in the
proposed rule for this action have already been established in the
WCPFC purse seine rule, they need not be included in this final rule.
Specifically, the following elements of the regulations in the proposed
rule for this action are not included in this final rule: Sec.
300.210, ``Purpose and scope,'' in its entirety; in Sec. 300.211,
``Definitions,'' the introductory sentence and the definitions for all
the terms needed in the WCPFC purse seine rule; in Sec. 300.215,
``Observers,'' all of paragraph (c) except the sentence ``All fishing
vessels subject to this section must carry a WCPFC observer when
directed to do so by NMFS'' (which has been further revised--see
below); and in Sec. 300.222, ``Prohibitions,'' the introductory
sentence.
In Sec. 300.211, ``Definitions,'' the definition of ``Fishing''
has been revised to clarify that it includes transshipment only if the
transshipment takes place at sea.
In Sec. 300.212, ``Vessel permit endorsements,'' the following
statement has been removed from paragraph (c)(3), which relates to the
requirement that a photograph of the subject vessel be included with
the application for a WCPFC Area Endorsement: ``A vessel photograph
submitted as part of an application for a high seas fishing permit will
be deemed to satisfy the requirement under this section, provided that
it clearly shows that the vessel is marked in accordance with the
vessel identification requirements of Sec. 300.217 and it meets the
specifications prescribed on the WCPFC Area Endorsement application
form.'' This statement was included in the proposed rule in
anticipation that the high seas fishing permit application requirements
under 50 CFR 300.13 might be revised to require that the applicant
provide a vessel photograph. The high seas permit application
requirements have not been revised in that manner, so the statement has
been removed from this final rule. Also in Sec. 300.212, paragraph (f)
has been revised to clarify that a WCPFC Area Endorsement shall be void
whenever the underlying high seas fishing permit is void, ``suspended,
sanctioned or revoked,'' and ``is also subject to suspension or
revocation independent of the high seas fishing permit.''
In Sec. 300.215, ``Observers,'' paragraph (c) has been clarified
to say that the requirement to carry a WCPFC observer when directed to
do so by NMFS is limited to fishing trips during which the fishing
vessel at any time enters or is within the Convention Area.
In Sec. 300.216, ``Transshipment,'' paragraph (b) has been
clarified to say that the restrictions apply to transshipments from
purse seine fishing vessels ``of the United States'' and to
transshipments from purse seine fishing vessels to fishing vessels ``of
the United States.''
In Sec. 300.217, ``Vessel identification,'' a new paragraph (c)
has been added to say that the section does not apply to fishing
vessels that are subject to the vessel identification requirements of
50 CFR 300.173 or 660.704 until conflicts with those requirements are
reconciled, and only upon publication in the Federal Register of a
notice or final rule that includes a statement to that effect.
[[Page 3344]]
In Sec. 300.218, ``Reporting and recordkeeping,'' paragraph (a)(1)
has been clarified to say that the requirements of the section apply to
fishing vessels ``of the United States'' used for commercial fishing
for HMS in the Pacific Ocean.
In Sec. 300.219, ``Vessel monitoring system,'' paragraph (a) has
been revised to include the NOAA Office of Law Enforcement's VMS
Helpdesk as a contact for the purpose of submitting on/off reports.
Also in Sec. 300.219, several references to ``NMFS'' have been
replaced by ``the SAC'' in order to clarify that certain communications
from NMFS can be expected to be received specifically from the SAC,
which is the Special-Agent-In-Charge, NOAA Office of Law Enforcement,
Pacific Islands Division, or a designee.
In Sec. 902.1(b) of title 15 of the Code of Federal Regulations,
which includes a table listing control numbers issued by the Office of
Management and Budget (OMB) for collections of information required
under NOAA regulations, new entries have been added for the OMB control
numbers approved for the information collections required under
Sec. Sec. 300.212, 300.213, and 300.219 of title 50 of the Code of
Federal Regulations.
Delegation of Authority
Under NOAA Administrative Order 205-11, dated December 17, 1990,
the Under Secretary for Oceans and Atmosphere has delegated authority
to sign material for publication in the Federal Register to the
Assistant Administrator for Fisheries, NOAA.
Classification
The NOAA Assistant Administrator for Fisheries has determined that
this final rule is consistent with the WCPFC Implementation Act and
other applicable laws.
National Environmental Policy Act
NMFS prepared an Environmental Assessment (EA) that discusses the
expected impacts that implementation of the rule would have on the
environment. NMFS issued a draft version of the EA for public review
and comment in conjunction with the proposed rule. Comments on the
draft EA have been addressed in the preamble to the final rule. The
final version of the EA is available at http://www.fpir.noaa.gov/IFD/ifd_documents_data.html. NMFS analyzed four action alternatives as
well as the no-action, or baseline, alternative in the EA. The action
alternatives include the provisions of the rule that are discretionary
in nature (i.e., the provisions that allow NMFS discretion in the
methods and means to implement them), while the other provisions of the
rule were analyzed as part of the cumulative impacts analysis. The
primary environmental effect of any of the action alternatives is that
implementation of the requirements would make it more costly to fish,
and thus, there could be a disincentive to fish, at least in the area
of application of the requirements. However, the disincentive to fish
would be expected to be minor for the majority of affected vessels. At
most, the disincentive to fish could result in slight decreases in
longline and/or albacore troll fishing effort on the high seas in the
area of application of the Convention, and correspondingly slight
increases in other areas. None of the requirements would directly
control fishing practices per se, such as how much fishing effort is
exerted, how much of a given resource may be caught, where fishing may
take place, what type of fishing gear may be used, or how fishing gear
may be deployed. None of the action alternatives would authorize or
open the possibility for a new fishery or expand fishing opportunities.
None of the action alternatives would be anticipated to result in an
increase in fishing effort in the area of application of the
Convention, and none would be expected to result in marked changes in
fishing patterns anywhere. The non-discretionary provisions of the rule
analyzed as part of the cumulative impacts analysis would also make it
more costly to fish, and thus, would enhance the likelihood and/or
magnitude of the expected impacts of the action alternatives, but only
slightly so. The contribution to cumulative environmental impacts on
the affected environment from any of the provisions in the rule would
be minor. The final rule implements Alternative D, because it would
achieve what NMFS believes is the best balance between the compliance
costs that would be imposed on fishermen and the effectiveness of the
resulting management regime. Based on the analysis in the EA, NMFS has
determined that there will be no significant impact on the human
environment as a result of this rule.
The economic impacts of the rule are addressed in the EA only
insofar as they are related to impacts to the biophysical environment.
They are addressed more fully in the RIR, IRFA, and FRFA. A copy of the
EA is available from NMFS (see ADDRESSES).
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
NMFS prepared a final regulatory flexibility analysis (FRFA) for
the rule, Initial Implementation of the Western and Central Pacific
Fisheries Convention. The FRFA incorporates the IRFA prepared for the
proposed rule (74 FR 23965; May 22, 2009; available from NMFS--see
ADDRESSES). The analysis provided in the IRFA is not repeated here in
its entirety.
The need for, reasons why action by the agency is being considered,
and the objectives of the action are explained in the preambles to the
proposed rule and final rule and are not repeated here. There are no
disproportionate economic impacts between small and large vessels
resulting from this final rule. Furthermore, there are no
disproportionate economic impacts from this rule based on vessel size,
gear, or homeport. The new recordkeeping or reporting requirements in
this rule, as well as other compliance requirements, are described in
the IRFA. This final rule is issued under authority of the WCPFC
Implementation Act.
Description of Small Entities to Which the Rule Will Apply
This final rule will apply to owners and operators of U.S. vessels
used for fishing in the Pacific Ocean. Most elements of the proposed
rule will apply to smaller subsets of that pool of vessels, as shown in
Table 1. The numbering of the elements in Table 1 corresponds to the
numbering used in the descriptions earlier in this section of the
preamble. Table 1 also shows estimates of the numbers of vessels,
broken down by vessel type where possible, to which each element of the
rule will apply. Based on available financial information about the
affected fishing fleets, NMFS believes that with the exception of most
vessels in the purse seine and carrier and support vessel fleets,
virtually all the affected vessels are owned by small business entities
(i.e., they have gross annual receipts of no more than $4.0 million).
In the purse seine fleet, NMFS believes that as many as 10 of the
affected vessels are owned by small entities. In the carrier and
support vessel fleet, NMFS believes that no vessels are owned by small
entities. The estimated numbers of small entities that will be affected
by each element of the rule are shown in parentheses in the last column
of Table 1.
[[Page 3345]]
Table 1--Descriptions and Numbers of Vessels and Small Entities to Which the Proposed Rule Would Apply
----------------------------------------------------------------------------------------------------------------
Description of
Element of proposed rule vessels to which Estimated number of vessels (and small entities) to
element would apply which element would apply
----------------------------------------------------------------------------------------------------------------
1. Authorization to fish........... Vessels used for Longline 139 (139).
commercial fishing Purse seine 40 (10).
for HMS on high seas Troll 69 (69).
in Convention Area. Support 5 (0).
Total 253 (218).
2a. Vessel information--high seas.. Vessels used for Longline 139 (139).
commercial fishing Purse seine 40 (10).
for HMS on high seas Troll 69 (69).
in Convention Area. Support 5 (0).
Total 253 (218).
2b. Vessel information--foreign Vessels used for Longline, troll, support 20 (20).
jurisdictions. commercial fishing Purse seine 40 (10).
for HMS in foreign Total 60 (30).
jurisdictions in
Convention Area.
3. VMS............................. Vessels used for Longline 139 (139).
commercial fishing Purse seine 40 (10).
for HMS on high seas Troll 69 (69).
in Convention Area. Support 5 (0).
Total 253 (218).
4. Vessel observer program......... Vessels used for Longline 139 (139).
commercial fishing Purse seine 40 (10).
for HMS on high seas Troll 69 (69).
in Convention Area. Support 5 (0).
Total 253 (218).
5. Vessel identification........... Vessels used for Longline 139 (139).
commercial fishing Purse seine 40 (10).
for HMS on high seas Troll 69 (69).
in Convention Area. Support 5 (0).
Total 253 (218).
6. Transshipment restrictions...... Purse seine vessels Longline 0 (0).
used for fishing in Purse seine 40 (10).
Convention Area and Troll 0 (0).
vessels used to Support 5 (0).
receive fish in Total 45 (10).
Convention Area.
7. Reporting and recordkeeping..... Vessels used for Total 5,000 (5,000).
commercial fishing
for HMS in Pacific
Ocean.
8a. Compliance with the laws of Vessels used for Longline 139 (139).
other nations--high seas. commercial fishing Purse seine 40 (10).
for HMS on high seas Troll 69 (69).
in Convention Area. Support 5 (0).
Total 253 (218).
8b. Compliance with the laws of Vessels used for Longline, troll, support 20 (20).
other nations--jurisdictions of commercial fishing Purse seine 40 (10).
other WCPFC members. for HMS in areas Total 60 (30).
under the
jurisdiction of
other WCPFC members.
9a. Facilitation of enforcement and Vessels used for Longline 139 (139).
inspection--HMS fishing. commercial fishing Purse seine 40 (10).
for HMS in the Troll 69 (69).
Convention Area on Support 5 (0).
high seas or in Total 253 (218).
areas under the
jurisdiction of
other nations.
9b. Facilitation of enforcement and Fishing vessels used Longline 139 (139).
inspection--all fishing. on high seas in Purse seine 40 (10).
Convention Area. Troll 69 (69).
Support 5 (0).
Total 253 (218).
10. Confidentiality of information. None................. Longline 0 (0).
Purse seine 0 (0).
Troll 0 (0).
Support 0 (0).
Total 0 (0).
----------------------------------------------------------------------------------------------------------------
Steps Taken To Minimize the Significant Economic Impact on Small
Entities
NMFS explored alternatives that would achieve the objective of this
action (to satisfy the international obligations of the United States
under the Convention and accomplish the objectives of the WCPFC
Implementation Act) while minimizing economic impacts on small
entities. As described in the IRFA, NMFS has limited discretion as to
how to implement the provisions of the Convention and the decisions of
the WCPFC. Consequently, NMFS was able to identify alternatives that
would satisfy the Convention's provisions for only four elements of the
rule, as identified in the IRFA: Element (1),
[[Page 3346]]
authorization to fish; element (2), vessel information; element (3),
VMS; and the high seas boarding and inspection component of element
(9), facilitation of enforcement and inspection. NMFS was not able to
identify any additional alternatives that would minimize significant
economic impacts on small entities while satisfying the obligations of
the United States under the Convention. The alternatives considered in
the IRFA, and the reasons for preferring one over another, are
summarized below.
With respect to element (1), authorization to fish, one alternative
would be to rely on the existing high seas fishing permit requirement
under the HSFCA (that requirement applies to the high seas globally,
not just the high seas in the Convention Area), rather than
establishing an additional authorization requirement. Although this
would be less costly to affected small entities than the proposed
action, this alternative would fail to identify the pool of vessel
owners and operators interested in fishing on the high seas in the
Convention Area and subject to all the other Convention-related
requirements. As a consequence, it would be difficult to conduct
effective outreach and enforcement activities to achieve a high level
of compliance with those requirements. For that reason, this
alternative was rejected. A second alternative would be to create a new
stand-alone permit (WCPFC Area Permit) that would be required for any
vessel used for commercial fishing for HMS on the high seas in the
Convention Area but which, unlike the proposed WCPFC Area Endorsement
(which would be an endorsement on a high seas fishing permit), would
not be related in any way to the high seas fishing permit. This would
be slightly more costly to affected small entities than the WCPFC Area
Endorsement. For that reason, this alternative was rejected.
With respect to element (2), vessel information, one alternative
would be to collect the needed information separately from any permit
requirement; that is, as a stand-alone requirement for vessel owners to
submit specified information to NMFS. The cost to affected small
entities would be about the same as that of the proposed action, but
because it would not be tied to obtaining a fishing authorization,
compliance with this alternative would likely be poorer than for the
proposed action. For that reason, this alternative was rejected. A
second alternative would be to collect the needed information via the
application for a WCPFC Area Permit. The cost to affected small
entities under this alternative would be about the same as that of the
proposed action, but because the cost of the WCPFC Area Permit
alternative would be slightly more costly to affected small entities
than the WCPFC Area Endorsement alternative (see above), this
alternative was rejected.
With respect to element (3), VMS, one alternative would be to
require that VMS units be carried and operated on vessels used for
commercial fishing for HMS on the high seas in the Convention Area, but
only when the subject vessel is actually on the high seas in the
Convention Area. This could be slightly less costly to affected small
entities because they would be allowed to turn off the VMS unit when
not on the high seas in the Convention Area, but because vessel
operators would be allowed to operate in many areas with their VMS
units disabled, compliance with this alternative while on the high seas
in the Convention Area would be expected to be lower than under the
proposed action. That is, it is expected that more vessels would
operate within the Convention Area more often without operating their
VMS units. For that reason, this alternative was rejected. A second
alternative would be to require that VMS units be carried and operated
on vessels used for commercial fishing for HMS during the entirety of
any trip that includes the high seas in the Convention Area. Like the
previous alternative, this could be slightly less costly to affected
small entities than the proposed action, but for the same reasons cited
for the previous alternative, compliance with this alternative would
likely be poorer than for the proposed action. For that reason, this
alternative was rejected. A third alternative would be to require that
a VMS unit be carried and operated at all times on any vessel with a
WCPFC Area Permit. The costs to affected small entities under this
alternative would be slightly more than under the proposed action. For
that reason, and because the WCPFC Area Permit alternative would be
slightly more costly to affected small entities than the WCPFC Area
Endorsement alternative (see above), this alternative was rejected.
With respect to the high seas boarding and inspection component of
element (9), facilitation of enforcement and inspection, one
alternative would be to require that only operators of vessels used to
fish for HMS (rather than for any species, as being proposed) on the
high seas in the Convention Area accept and facilitate boarding and
inspection by authorized inspectors of other members of the WCPFC. The
number of affected small entities would be smaller than under the
proposed action. However, since the inspectors of other members of the
WCPFC may not be able to readily distinguish U.S. vessels used for
fishing for HMS (which the WCPFC's boarding and inspection regime is
designed to target) from other U.S. fishing vessels, an effective
boarding regime may require that U.S. fishing vessels in the latter
category accept boarding from inspection vessels of other members of
the WCPFC in order to verify the fishing vessel's status. By applying
this requirement to all U.S. fishing vessels, not just those used for
fishing for HMS, non-HMS U.S. fishing vessels would be more prepared
for the prospect of being boarded and inspected. As a consequence of
such preparation, any boardings and inspections of non-HMS U.S. fishing
vessels would be more likely to be completed quickly and without
misunderstandings and the potential for conflict. NMFS believes that
the proposed action would be safer and less costly to small entities
than the alternative of applying the requirement only to operators of
vessels used to fish for HMS. For that reason, the alternative of
applying this requirement to just those vessels used for fishing for
HMS was rejected.
The alternative of taking no action at all was rejected because it
would fail to accomplish the objective of the WCPFC Implementation Act
or satisfy the international obligations of the United States as a
Contracting Party to the Convention.
The selected alternative would satisfy the international
obligations of the United States as a Contracting Party to the
Convention and thereby accomplish the objective of the WCPFC
Implementation Act, and do so with minimal adverse economic impacts on
small entities, and for these reasons was adopted in the final rule.
Comments and Responses on the IRFA
NMFS received a number of comments on the proposed rule that
pertained to information in the IRFA. These were comments 7, 8, 9, 10,
11, 14, 15, 16, 17, 18, 19, 20, 22, and 23, as presented in a previous
section of this preamble. These comments, and NMFS' responses, are
incorporated by reference into this FRFA.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such
[[Page 3347]]
publications as ``small entity compliance guides.'' The agency shall
explain the actions a small entity is required to take to comply with a
rule or group of rules. As part of this rulemaking process, a small
entity compliance guide (the guide) has been prepared. The guide will
be sent to all holders of relevant fishing permits and licenses. Copies
of this final rule and the guide are available from NMFS (see
ADDRESSES) and are available at: http://www.fpir.noaa.gov/IFD/ifd_documents_data.html.
Paperwork Reduction Act
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA). The collection of this
information has been approved by the Office of Management and Budget
(OMB) under OMB Control Numbers 0648-0595 (vessel information
requirements) and 0648-0596 (VMS requirements). The public reporting
burden for the vessel information requirements is estimated to average
60 minutes per WCPFC Area Endorsement application, with about one
application per five years per respondent (i.e., 12 minutes per
respondent per year, on average); and about 90 minutes per Foreign EEZ
Form, with about one form per five years per respondent (i.e., 18
minutes per respondent per year, on average). The public reporting
burden for the VMS requirements is estimated to average 5 minutes per
activation report, with about one activation report per two years per
respondent (i.e., 2.5 minutes per respondent per year, on average); 5
minutes per on/off report, with about 10 on/off reports per year per
respondent (i.e., 50 minutes per respondent per year, on average); 4
hours per VMS unit purchase and installation, with about one purchase
and installation per four years per respondent (i.e., 1 hour per
respondent per year, on average); and 1 hour per year per respondent
for VMS unit maintenance (i.e., 1 hour per respondent per year, on
average). These estimated burdens include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding these burden
estimates or any other aspect of this data information, including
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.
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 OMB control number.
Prior notice and opportunity for public comment are not required
with respect to the revision to the table of OMB control numbers in 15
CFR 902.1(b) because this action is a rule of agency organization,
procedure or practice under 5 U.S.C. 553(b)(A).
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: January 14, 2010.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, 15 CFR Chapter IX and 50 CFR
Chapter III are amended as follows:
15 CFR CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
DEPARTMENT OF COMMERCE
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, paragraph (b), the table is amended by adding in the
left column under 50 CFR, in numerical order, entries for Sec. Sec.
300.212, 300.213, and 300.219, and, in the right column, in
corresponding positions, the control numbers ``-0595,'' ``-0595,'' and
``-0596,'' as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control number
CFR part or section where the information collection (all numbers
requirement is located begin with 0648-
)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
300.212............................................... -0595
300.213............................................... -0595
300.219............................................... -0596
* * * * *
------------------------------------------------------------------------
50 CFR CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart B--High Seas Fisheries
0
3. The authority citation for 50 CFR part 300, subpart B, continues to
read as follows:
Authority: 16 U.S.C. 5501 et seq.
0
4. In Sec. 300.14, paragraph (b)(2)(i) is revised to read as follows:
Sec. 300.14 Vessel identification.
* * * * *
(b) * * *
(2) * * *
(i) A vessel must be marked with its IRCS if it has been assigned
an IRCS. If an IRCS has not been assigned to the vessel, it must be
marked (in order of priority) with its Federal, State, or other
documentation number appearing on its high seas fishing permit and if a
WCPFC Area Endorsement has been issued for the vessel under Sec.
300.212, that documentation number must be preceded by the characters
``USA'' and a hyphen (that is, ``USA-'').
* * * * *
Subpart O--Western and Central Pacific Fisheries for Highly
Migratory Species
0
5. The authority citation for 50 CFR part 300, subpart O, continues to
read as follows:
Authority: 16 U.S.C. 6901 et seq.
0
6. In Sec. 300.211, definitions of ``1982 Convention,'' ``Aggregate or
summary form,'' ``Commercial,'' ``Confidential information,''
``Conservation and management measure,'' ``High seas fishing permit,''
``Highly migratory species (or HMS),'' ``Marine Fisheries Commission,''
``NOAA,'' ``Observer employer/observer provider,'' ``Observer
information,'' ``Special Agent-In-Charge (or SAC),'' ``Vessel
monitoring system (or VMS),'' ``VMS unit,'' ``WCPFC Area Endorsement,''
``WCPFC inspection vessel,'' ``WCPFC inspector,'' and ``WCPFC
transshipment monitor'' are added, in alphabetical order, and the
definition of ``Fishing'' is revised, to read as follows:
[[Page 3348]]
Sec. 300.211 Definitions.
* * * * *
1982 Convention means the United Nations Convention on the Law of
the Sea of 10 December 1982.
Aggregate or summary form means information structured in such a
way which does not directly or indirectly disclose the identity or
business of any person who submits such information.
Commercial, with respect to commercial fishing, means fishing in
which the fish harvested, either in whole or in part, are intended to
enter commerce through sale, barter or trade.
* * * * *
Confidential information means any observer information or any
information submitted to the Secretary, a State fishery management
agency, or a Marine Fisheries Commission by any person in compliance
with any requirement or regulation under the Act or under the Magnuson-
Stevens Fishery Conservation and Management Act.
Conservation and management measure means those conservation and
management measures adopted by the Commission pursuant to Article 10 of
the WCPF Convention.
* * * * *
Fishing means using any vessel, vehicle, aircraft or hovercraft for
any of the following activities, or attempting to do so:
(1) Searching for, catching, taking, or harvesting fish;
(2) Engaging in any other activity which can reasonably be expected
to result in the locating, catching, taking, or harvesting of fish for
any purpose;
(3) Placing, searching for, or recovering fish aggregating devices
or associated electronic equipment such as radio beacons;
(4) Engaging in any operations at sea directly in support of, or in
preparation for, any of the activities previously described in
paragraphs (1) through (3) of this definition, including, but not
limited to, bunkering;
(5) Engaging in transshipment at sea, either unloading or loading
fish.
* * * * *
Highly migratory species (or HMS) means any of the following
species:
------------------------------------------------------------------------
Common name Scientific name
------------------------------------------------------------------------
Albacore.......................... Thunnus alalunga.
Pacific bluefin tuna.............. Thunnus orientalis.
Southern bluefin tuna............. Thunnus maccoyii.
Bigeye tuna....................... Thunnus obesus.
Skipjack tuna..................... Katsuwonus pelamis.
Yellowfin tuna.................... Thunnus albacares.
Little tuna....................... Euthynnus affinis.
Frigate mackerel.................. Auxis thazard; Auxis rochei.
Pomfrets.......................... Family Bramidae.
Marlins........................... Tetrapturus angustirostris;
Tetrapturus audax; Makaira mazara;
Makaira indica; Makaira nigricans.
Sail-fishes....................... Istiophorus platypterus.
Swordfish......................... Xiphias gladius.
Dolphinfish....................... Coryphaena hippurus; Coryphaena
equiselis.
Oceanic sharks.................... Hexanchus griseus; Cetorhinus
maximus; Family Alopiidae;
Rhincodon typus; Family
Carcharhinidae; Family Sphyrnidae;
Family Isuridae (or Lamnidae).
------------------------------------------------------------------------
High seas fishing permit means a permit issued under Sec. 300.13.
* * * * *
Marine Fisheries Commission means the Atlantic States Marine
Fisheries Commission, the Gulf States Marine Fisheries Commission, or
the Pacific States Marine Fisheries Commission.
* * * * *
NOAA means the National Oceanic and Atmospheric Administration,
Department of Commerce.
Observer employer/observer provider means any person that provides
observers to fishing vessels, shoreside processors, or stationary
floating processors under a requirement of the Act or the Magnuson-
Stevens Fishery Conservation and Management Act.
Observer information means any information collected, observed,
retrieved, or created by an observer or electronic monitoring system
pursuant to authorization by the Secretary, or collected as part of a
cooperative research initiative, including fish harvest or processing
observations, fish sampling or weighing data, vessel logbook data,
vessel or processor-specific information (including any safety,
location, or operating condition observations), and video, audio,
photographic, or written documents.
* * * * *
Special Agent-In-Charge (or SAC) means the Special-Agent-In-Charge,
NOAA Office of Law Enforcement, Pacific Islands Division, or a designee
(1601 Kapiolani Blvd., Suite 950, Honolulu, HI 96814; tel: (808) 203-
2500; facsimile: (808) 203-2599; e-mail: pidvms@noaa.gov).
* * * * *
Vessel monitoring system (or VMS) means an automated, remote system
that provides information about a vessel's identity, location and
activity, for the purposes of routine monitoring, control, surveillance
and enforcement of area and time restrictions and other fishery
management measures.
VMS unit, sometimes known as a ``mobile transmitting unit,'' means
a transceiver or communications device, including all hardware and
software, that is carried and operated on a vessel as part of a VMS.
WCPFC Area Endorsement means the authorization issued by NMFS under
Sec. 300.212, supplementary to a valid high seas fishing permit and
expressed as an endorsement to such permit, for a fishing vessel used
for commercial fishing for highly migratory species on the high seas in
the Convention Area.
* * * * *
WCPFC inspection vessel means any vessel that is:
(1) Authorized by a member of the Commission to be used to
undertake boarding and inspection of fishing vessels on the high seas
pursuant to, and in accordance with, Article 26 of the WCPF Convention
and procedures established by the Commission pursuant thereto;
(2) Included in the Commission's register of authorized inspection
vessels and authorities or inspectors, established by the Commission in
procedures pursuant to Article 26 of the WCPF Convention; and
(3) Flying the WCPFC inspection flag established by the Commission.
WCPFC inspector means a person that is authorized by a member of
the
[[Page 3349]]
Commission to undertake boarding and inspection of fishing vessels on
the high seas pursuant to, and in accordance with, the boarding and
inspection procedures adopted by the Commission under Article 26 of the
WCPF Convention, and referred to therein as a ``duly authorized
inspector'' or ``authorized inspector.''
* * * * *
WCPFC transshipment monitor means, with respect to transshipments
that take place on the high seas, a person authorized by the Commission
to conduct transshipment monitoring on the high seas, and with respect
to transshipments that take place in areas under the jurisdiction of a
member of the Commission other than the United States, a person
authorized by such member of the Commission to conduct transshipment
monitoring.
0
7. Section 300.212 is added to read as follows:
Sec. 300.212 Vessel permit endorsements.
(a) Any fishing vessel of the United States used for commercial
fishing for HMS on the high seas in the Convention Area must have on
board a valid high seas fishing permit, or a copy thereof, that has a
valid WCPFC Area Endorsement, or a copy thereof.
(b) Eligibility. Only a fishing vessel that has a valid high seas
fishing permit is eligible to receive a WCPFC Area Endorsement.
(c) Application. (1) A WCPFC Area Endorsement may be applied for at
the same time the underlying high seas permit is applied for, or at any
time thereafter.
(2) The owner or operator of a high seas fishing vessel may apply
for a WCPFC Area Endorsement by completing an application form,
available from the Pacific Islands Regional Administrator, and
submitting the complete and accurate application, signed by the
applicant, to the Pacific Islands Regional Administrator, along with
the required fees.
(3) The application must be accompanied by a bow-to-stern side-view
photograph of the vessel in its current form and appearance. The
photograph must meet the specifications prescribed on the application
form and clearly show that the vessel is marked in accordance with the
vessel identification requirements of Sec. 300.217.
(d) Fees. NMFS will charge a fee to recover the administrative
expenses of issuance of a WCPFC Area Endorsement. The amount of the fee
will be determined in accordance with the procedures of the NOAA
Finance Handbook, available from the Pacific Islands Regional
Administrator, for determining administrative costs of each special
product or service. The fee is specified in the application form. The
appropriate fee must accompany each application. Failure to pay the fee
will preclude issuance of the WCPFC Area Endorsement. Payment by a
commercial instrument later determined to be insufficiently funded is
grounds for invalidating the WCPFC Area Endorsement.
(e) Issuance. (1) The Pacific Islands Regional Administrator will
issue a WCPFC Area Endorsement within 30 days of receipt of a complete
application that meets the requirements of this section and upon
payment of the appropriate fee.
(2) If an incomplete or improperly completed application is
submitted, the Pacific Islands Regional Administrator will notify the
applicant of such deficiency within 30 days of the date of receipt of
the application. If the applicant fails to correct the deficiency and
send a complete and accurate application to the Pacific Islands
Regional Administrator within 30 days of the date of the notification
of deficiency, the application will be considered withdrawn and no
further action will be taken to process the application. Following
withdrawal, the applicant may at any time submit a new application for
consideration.
(f) Validity. A WCPFC Area Endorsement issued under this subpart
expires upon the expiration of the underlying high seas fishing permit,
and shall be void whenever the underlying high seas fishing permit is
void, suspended, sanctioned or revoked. A WCPFC Area Endorsement is
also subject to suspension or revocation independent of the high seas
fishing permit. Renewal of a WCPFC Area Endorsement prior to its
expiration is the responsibility of the WCPFC Area Endorsement holder.
(g) Change in application information. Any change in the required
information provided in an approved or pending application for a WCPFC
Area Endorsement must be reported by the vessel owner or operator to
the Pacific Islands Regional Administrator in writing within 15 days of
such change.
(h) Transfer. A WCPFC Area Endorsement issued under this subpart is
valid only for the vessel, owner, and high seas fishing permit to which
it is issued and is not transferable or assignable to another high seas
fishing permit or to another vessel.
(i) Display. A valid WCPFC Area Endorsement, or a photocopy or
facsimile copy thereof, issued under this subpart must be on board the
vessel and available for inspection by any authorized officer while the
vessel is at sea and must be available for inspection by any WCPFC
inspector while the vessel is on the high seas in the Convention Area.
0
8. Section 300.213 is added to read as follows:
Sec. 300.213 Vessel information.
(a) The owner or operator of any fishing vessel of the United
States that is used for fishing for HMS in the Convention Area in
waters under the jurisdiction of any nation other than the United
States must, prior to the commencement of such fishing, submit to the
Pacific Islands Regional Administrator information about the vessel and
its ownership and operation, and the authorized fishing activities,
including copies of any permits, licenses, or authorizations issued for
such activities, as specified on forms available from the Pacific
Islands Regional Administrator. The owner or operator of such a fishing
vessel must also submit to the Pacific Islands Regional Administrator a
bow-to-stern side-view photograph of the vessel in its current form and
appearance, and the photograph must meet the specifications prescribed
on the application form. If any of the submitted information changes,
the vessel owner or operator must report the updated information to the
Pacific Islands Regional Administrator in writing within 15 days of the
change.
(b) If any of the information or the vessel photograph required
under paragraph (a) of this section has been submitted for the subject
vessel on an application for a high seas fishing permit or an
application for a WCPFC Area Endorsement, then the requirements of
paragraph (a) of this section will be deemed satisfied. However, in
order to satisfy this requirement, the high seas fishing permit or
WCPFC Area Endorsement must be valid, the information provided must be
true, accurate and complete, and in the case of a vessel photograph, it
must meet the specifications prescribed on the form used for the
purpose of submitting the photograph under this section.
0
9. Section 300.214 is added to read as follows:
Sec. 300.214 Compliance with laws of other nations.
(a) The owner and operator of a fishing vessel of the United States
with a WCPFC Area Endorsement or for which a WCPFC Area Endorsement is
required:
[[Page 3350]]
(1) May not use the vessel for fishing, retaining fish on board, or
landing fish in areas under the jurisdiction of a nation other than the
United States unless any license, permit, or other authorization that
may be required by such other nation for such activity has been issued
with respect to the vessel.
(2) Shall, when the vessel is in the Convention Area in areas under
the jurisdiction of a member of the Commission other than the United
States, operate the vessel in compliance with, and ensure its crew
complies with, the applicable national laws of such member.
(b) The owner and operator of a fishing vessel of the United States
shall ensure that:
(1) The vessel is not used for fishing for HMS, retaining HMS on
board, or landing HMS in the Convention Area in areas under the
jurisdiction of a nation other than the United States unless any
license, permit, or other authorization that may be required by such
other nation for such activity has been issued with respect to the
vessel.
(2) If the vessel is used for commercial fishing for HMS, including
transshipment of HMS, in the Convention Area in areas under the
jurisdiction of a member of the Commission other than the United
States, the vessel is operated in compliance with, and the vessel crew
complies with, the applicable laws of such member, including any laws
related to carrying vessel observers or the operation of VMS units.
(c) For the purpose of this section, the meaning of transshipment
does not include transfers that exclusively involve fish that have been
previously landed and processed.
0
10. In Sec. 300.215, paragraphs (a), (c), and (d) are revised to read
as follows:
Sec. 300.215 Observers.
(a) Applicability. This section applies to any fishing vessel of
the United States with a WCPFC Area Endorsement or for which a WCPFC
Area Endorsement is required.
* * * * *
(c) Accommodating observers. All fishing vessels subject to this
section must carry, when directed to do so by NMFS, a WCPFC observer on
fishing trips during which the vessel at any time enters or is within
the Convention Area. The operator and each member of the crew of the
fishing vessel shall act in accordance with this paragraph with respect
to any WCPFC observer.
(1) The operator and crew shall allow and assist WCPFC observers
to:
(i) Embark at a place and time determined by NMFS or otherwise
agreed to by NMFS and the vessel operator;
(ii) Have access to and use of all facilities and equipment on
board as necessary to conduct observer duties, including, but not
limited to: full access to the bridge, the fish on board, and areas
which may be used to hold, process, weigh and store fish; full access
to the vessel's records, including its logs and documentation, for the
purpose of inspection and copying; access to, and use of, navigational
equipment, charts and radios; and access to other information relating
to fishing;
(iii) Remove samples;
(iv) Disembark at a place and time determined by NMFS or otherwise
agreed to by NMFS and the vessel operator; and
(v) Carry out all duties safely.
(2) The operator shall provide the WCPFC observer, while on board
the vessel, with food, accommodation and medical facilities of a
reasonable standard equivalent to those normally available to an
officer on board the vessel, at no expense to the WCPFC observer.
(3) The operator and crew shall not assault, obstruct, resist,
delay, refuse boarding to, intimidate, harass or interfere with WCPFC
observers in the performance of their duties, or attempt to do any of
the same.
(d) Related observer requirements. Observers deployed by NMFS
pursuant to regulations issued under other statutory authorities on
vessels used for commercial fishing for HMS in the Convention Area will
be deemed by NMFS to have been deployed pursuant to this section.
0
11. Section 300.216 is added to read as follows:
Sec. 300.216 Transshipment.
(a) Transshipment monitoring. [Reserved]
(b) Transshipment restrictions. Fish may not be transshipped from a
purse seine fishing vessel of the United States at sea in the
Convention Area, and a fishing vessel of the United States may not be
used to receive a transshipment of fish from a purse seine fishing
vessel at sea in the Convention Area.
0
12. Section 300.217 is added to read as follows:
Sec. 300.217 Vessel identification.
(a) General. (1) A fishing vessel must be marked in accordance with
the requirements of this section in order for a WCPFC Area Endorsement
to be issued for the fishing vessel.
(2) Any fishing vessel of the United States with a WCPFC Area
Endorsement or for which a WCPFC Area Endorsement is required shall be
marked for identification purposes in accordance with this section, and
all parts of such markings shall be clear, distinct, uncovered, and
unobstructed.
(3) Any boat, skiff, or other watercraft carried on board the
fishing vessel shall be marked with the same identification markings as
required under this section for the fishing vessel and shall be marked
in accordance with this section.
(b) Marking. (1) Vessels shall be marked in accordance with the
identification requirements of Sec. 300.14(b)(2), and if an IRCS has
not been assigned to the vessel, then the Federal, State, or other
documentation number used in lieu of the IRCS must be preceded by the
characters ``USA'' and a hyphen (that is, ``USA-'').
(2) With the exception of the vessel's name and hailing port, the
marking required in this section shall be the only vessel
identification mark consisting of letters and numbers to be displayed
on the hull and superstructure.
(c) This section will not apply to fishing vessels that are subject
to the vessel identification requirements of Sec. Sec. 300.173 or
660.704 of this title until conflicts between the requirements of this
section and the requirements of those sections are reconciled, and only
upon publication in the Federal Register of a notice or final rule that
includes a statement to that effect.
0
13. Section 300.218 is added to read as follows:
Sec. 300.218 Reporting and recordkeeping requirements.
(a) Fishing reports.--(1) General. The owner or operator of any
fishing vessel of the United States used for commercial fishing for HMS
in the Pacific Ocean must maintain and report to NMFS catch and effort
and other operational information for all such fishing activities. The
reports must include at a minimum: identification information for the
vessel; description of fishing gear used; dates, times and locations of
fishing; and species and amounts of fish retained and discarded.
(2) Reporting options. Vessel owners and operators shall be deemed
to meet the recordkeeping and reporting requirements of paragraph
(a)(1) of this section by satisfying all applicable catch and effort
reporting requirements as listed below:
(i) Western Pacific pelagic fisheries. Fishing activities subject
to the reporting requirements of Sec. 665.14 of this title must be
maintained and
[[Page 3351]]
reported in the manner specified in that section.
(ii) West Coast HMS fisheries. Fishing activities subject to the
reporting requirements of Sec. 660.708(a) of this title must be
maintained and reported in the manner specified in that section.
(iii) Pacific tuna fisheries. Fishing activities subject to the
reporting requirements of Sec. 300.22 must be maintained and reported
in the manner specified in that section.
(iv) South Pacific tuna fisheries. Fishing activities subject to
the reporting requirements of Sec. 300.34(c)(1) must be maintained and
reported in the manner specified in that section.
(v) High seas fisheries. Fishing activities subject to the
reporting requirements of Sec. 300.17(a) must be maintained and
reported in the manner specified in Sec. 300.17(a) and (b).
(vi) Canada albacore fisheries. Fishing activities subject to the
reporting requirements of Sec. 300.174 must be maintained and reported
in the manner specified in that section.
(vii) State-regulated fisheries. Catch and effort information for
fishing activities for which reporting of effort, catch, and/or
landings is required under State law must be maintained and reported in
the manner specified under such State law.
(viii) Other fisheries. All other fishing activities subject to the
requirement of paragraph (a)(1) of this section must be recorded on
paper or electronic forms specified or provided by the Pacific Islands
Regional Administrator. Such forms will specify the information
required, which may include: Identification information for the vessel;
description of fishing gear used; dates, times and locations of
fishing; and species and amounts of fish retained and discarded. All
information specified by the Pacific Islands Regional Administrator on
such forms must be recorded on paper or electronically within 24 hours
of the completion of each fishing day. The information recorded must,
for each fishing day, include a dated signature of the vessel operator
or other type of authentication as specified by the Pacific Islands
Regional Administrator. The vessel operator must, unless otherwise
specified by the Pacific Islands Regional Administrator, submit the
information for each fishing day to the Pacific Islands Regional
Administrator within 72 hours of the first landing or port call after
the fishing day, and must submit the information in the manner
specified by the Pacific Islands Regional Administrator.
(3) Exceptions. (i) Catch and effort information for fishing
activities that take place in waters under State jurisdiction must be
maintained and reported only in cases where the reporting of such
activity is required under State law or under Federal regulations at
Sec. Sec. 300.22 and 300.34, and Sec. Sec. 660.708 and 665.14 of this
title.
(ii) Catch and effort information for fishing activities that take
place in waters under Federal jurisdiction around American Samoa, Guam
and the Northern Mariana Islands need not be reported under this
section unless reporting of such activity is required under regulations
in chapter VI of this title.
(b) Transshipment reports. [Reserved]
0
14. Section 300.219 is added to read as follows:
Sec. 300.219 Vessel monitoring system.
(a) SAC and VMS Helpdesk contact information and business hours.
The contact information for the SAC for the purpose of this section is:
1601 Kapiolani Blvd., Suite 950, Honolulu, HI 96814; telephone: (808)
203-2500; facsimile: (808) 203-2599; e-mail: pidvms@noaa.gov. The
business hours of the SAC for the purpose of this section are: Monday
through Friday, except Federal holidays, 8 a.m. to 4:30 p.m, Hawaii
Standard Time. The contact information for the NOAA Office of Law
Enforcement's VMS Helpdesk for the purpose of this section is:
telephone: (888) 219-9228; e-mail: ole.helpdesk@noaa.gov. The business
hours of the VMS Helpdesk for the purpose of this section are: Monday
through Friday, except Federal holidays, 7 a.m. to 11 p.m., Eastern
Time.
(b) Applicability. This section applies to any fishing vessel of
the United States with a WCPFC Area Endorsement or for which a WCPFC
Area Endorsement is required.
(c) Provision of vessel position information--(1) VMS unit
installation. The vessel owner and operator shall obtain and have
installed on the fishing vessel, in accordance with instructions
provided by the SAC and the VMS unit manufacturer, a VMS unit that is
type-approved by NMFS for fisheries governed under the Act. The vessel
owner and operator shall authorize the Commission and NMFS to receive
and relay transmissions from the VMS unit. The vessel owner and
operator shall arrange for a NMFS-approved mobile communications
service provider to receive and relay transmissions from the VMS unit
to NMFS. NMFS makes available lists of type-approved VMS units and
approved mobile communications service providers.
(2) VMS unit activation. If the VMS unit has not yet been activated
as described in this paragraph, or if the VMS unit has been newly
installed or reinstalled, or if the mobile communications service
provider has changed since the previous activation, or if directed by
the SAC, the vessel owner and operator shall, prior to the vessel
leaving port:
(i) Turn on the VMS unit to make it operational;
(ii) Submit a written activation report, via mail, facsimile or e-
mail, to the SAC, that includes: the vessel's name; the vessel's
official number; the VMS unit manufacturer and identification number;
and telephone, facsimile or e-mail contact information for the vessel
owner or operator; and
(iii) Receive verbal or written confirmation from the SAC that
proper transmissions are being received from the VMS unit.
(3) VMS unit operation. The vessel owner and operator shall
continuously operate the VMS unit at all times, except that the VMS
unit may be shut down while the vessel is at port or otherwise not at
sea, provided that the owner and operator:
(i) Prior to shutting down the VMS unit, report to the SAC or the
NOAA Office of Law Enforcement's VMS Helpdesk via facsimile or e-mail,
the following information: the intent to shut down the VMS unit; the
vessel's name; the vessel's official number; and telephone, facsimile
or e-mail contact information for the vessel owner or operator; and
(ii) When turning the VMS unit back on, report to the SAC or the
NOAA Office of Law Enforcement's VMS Helpdesk, via mail, facsimile or
e-mail, the following information: that the VMS unit has been turned
on; the vessel's name; the vessel's official number; and telephone,
facsimile or e-mail contact information for the vessel owner or
operator; and
(iii) Prior to leaving port, receive verbal or written confirmation
from the SAC that proper transmissions are being received from the VMS
unit.
(4) Failure of VMS unit. If the vessel owner or operator becomes
aware that the VMS unit has become inoperable or that transmission of
automatic position reports from the VMS unit has been interrupted, or
if notified by NMFS or the USCG that automatic position reports are not
being received from the VMS unit or that an inspection of the VMS unit
has revealed a problem with the performance of the VMS unit, the vessel
owner and operator shall comply with the following requirements:
[[Page 3352]]
(i) If the vessel is at port: The vessel owner or operator shall
repair or replace the VMS unit and ensure it is operable before the
vessel leaves port.
(ii) If the vessel is at sea: The vessel owner, operator, or
designee shall contact the SAC by telephone, facsimile, or e-mail at
the earliest opportunity during the SAC's business hours and identify
the caller and vessel. The vessel operator shall follow the
instructions provided by the SAC, which could include, but are not
limited to: ceasing fishing, stowing fishing gear, returning to port,
and/or submitting periodic position reports at specified intervals by
other means; and, repair or replace the VMS unit and ensure it is
operable before starting the next trip.
(5) Related VMS requirements. Installing, carrying and operating a
VMS unit in compliance with the requirements in part 300 of this title,
part 660 of this title, or part 665 of this title relating to the
installation, carrying, and operation of VMS units shall be deemed to
satisfy the requirements of paragraph (c) of this section, provided
that the VMS unit is operated continuously and at all times while the
vessel is at sea, the VMS unit is type-approved by NMFS for fisheries
governed under the Act, the owner and operator have authorized the
Commission and NMFS to receive and relay transmissions from the VMS
unit, and the specific requirements of paragraph (c)(4) of this section
are complied with. If the VMS unit is owned by NMFS, the requirement
under paragraph (c)(4) of this section to repair or replace the VMS
unit will be the responsibility of NMFS, but the vessel owner and
operator shall be responsible for ensuring that the VMS unit is
operable before leaving port or starting the next trip.
(d) Costs. The vessel owner and operator shall be responsible for
all costs associated with the purchase, installation and maintenance of
the VMS unit, and for all charges levied by the mobile communications
service provider as necessary to ensure the transmission of automatic
position reports to NMFS as required in paragraph (c) of this section.
However, if the VMS unit is being carried and operated in compliance
with the requirements in part 300 of this title, part 660 of this
title, or part 665 of this title relating to the installation,
carrying, and operation of VMS units, the vessel owner and operator
shall not be responsible for costs that are the responsibility of NMFS
under those regulations.
(e) Tampering. The vessel owner and operator shall ensure that the
VMS unit is not tampered with, disabled, destroyed, damaged or operated
improperly, and that its operation is not impeded or interfered with.
(f) Inspection. The vessel owner and operator shall make the VMS
unit, including its antenna, connectors and antenna cable, available
for inspection by authorized officers, by employees of the Commission,
by persons appointed by the Executive Director of the Commission for
this purpose, and, when the vessel is on the high seas in the
Convention Area, by WCPFC inspectors.
(g) Access to data. The vessel owner and operator shall make the
vessel's position data obtained from the VMS unit or other means
immediately and always available for inspection by NOAA personnel, USCG
personnel, and authorized officers, and shall make the vessel's
position data for positions on the high seas in the Convention Area
immediately and always available to WCPFC inspectors and the
Commission.
(h) Communication devices. (1) To facilitate communication with
management and enforcement authorities regarding the functioning of the
VMS unit and other purposes, the vessel operator shall, while the
vessel is at sea, carry on board and continuously monitor a two-way
communication device that is capable of real-time communication with
the SAC. The VMS unit used to fulfill the requirements of paragraph (c)
of this section may not be used to satisfy this requirement. If the
device is anything other than a radio, the contact number for the
device must be provided to the Pacific Islands Regional Administrator
on the application form for the WCPFC Area Endorsement in accordance
with the requirements of Sec. 300.212.
(2) For the purpose of submitting the position reports that might
be required in cases of VMS unit failure under paragraph (c)(4)(ii) of
this section, the vessel operator shall, while the vessel is at sea,
carry on board a communication device capable of transmitting, while
the vessel is on the high seas in the Convention Area, communications
by telephone, facsimile, e-mail, or radio to the Commission, in
Pohnpei, Micronesia. The VMS unit used to fulfill the requirements of
paragraph (c) of this section may not be used to satisfy this
requirement. The same communication device may be able to satisfy the
requirements of both this paragraph and paragraph (h)(1) of this
section.
0
15. Section 300.220 is added to read as follows:
Sec. 300.220 Confidentiality of information.
(a) Types of information covered. NOAA is authorized under the Act
and other statutes to collect and maintain information. This section
applies to confidential information collected under authority of the
Act.
(b) Collection and maintenance of information--(1) General. (i) Any
information required to be submitted to the Secretary, a State fishery
management agency, or a Marine Fisheries Commission under the Act shall
be provided to the Assistant Administrator.
(ii) Any observer information collected under the Act shall be
provided to the Assistant Administrator.
(iii) Appropriate safeguards as specified by NOAA Administrative
Order (NAO) 216-100 or other NOAA/NMFS internal procedures, apply to
the collection and maintenance of any information collected pursuant to
paragraphs (b)(1) or (b)(2) of this section, whether separated from
identifying particulars or not, so as to ensure their confidentiality.
Information submitted to the Secretary in compliance with this subpart
shall not be disclosed except as authorized herein or by other law or
regulation.
(2) Collection agreements with States or Marine Fisheries
Commissions. (i) The Assistant Administrator may enter into an
agreement with a State or a Marine Fisheries Commission authorizing the
State or Marine Fisheries Commission to collect information on behalf
of the Secretary.
(ii) To enter into a cooperative collection agreement with a State
or a Marine Fisheries Commission, NMFS must ensure that:
(A) The State has authority to protect the information from
disclosure in a manner at least as protective as these regulations.
(B) The Marine Fisheries Commission has enacted policies and
procedures to protect the information from public disclosure.
(3) Collection services by observer employer/observer provider. The
Assistant Administrator shall make the following determinations before
issuing a permit or letting a contract or grant to an organization that
provides observer services:
(i) That the observer employer/observer provider has enacted
policies and procedures to protect the information from public
disclosure;
(ii) That the observer employer/observer provider has entered into
an agreement with the Assistant Administrator that prohibits public
disclosure and specifies penalties for such disclosure; and
[[Page 3353]]
(iii) That the observer employer/observer provider requires each
observer to sign an agreement with NOAA/NMFS that prohibits public
disclosure of observer information and specifies penalties for such
disclosure.
(c) Access to information--(1) General. This section establishes
procedures intended to manage, preserve, and protect the
confidentiality of information submitted in compliance with the Act and
its implementing regulations. This section applies to those persons and
organizations deemed eligible to access confidential information
subject to the terms and conditions described in this section and the
Act. All other persons requesting access to confidential information
should follow the procedures set forth in the Freedom of Information
Act, 5 U.S.C. 552, 15 CFR parts 15 and 903, NAO 205-14, and Department
of Commerce Administrative Orders 205-12 and 205-14, as applicable.
Persons eligible to access confidential information under this section
shall submit to NMFS a written request with the following information:
(i) The specific types of information requested;
(ii) The relevance of the information to requirements of the Act;
(iii) The duration of time that access will be required:
continuous, infrequent, or one-time; and
(iv) An explanation of why the availability of information in
aggregate or summary form from other sources would not satisfy the
requested needs.
(2) Federal employees. Confidential information will only be
accessible to the following:
(i) Federal employees who are responsible for administering,
implementing, or enforcing the Act. Such persons are exempt from the
provisions of paragraph (c)(1) of this section.
(ii) NMFS employees responsible for the collection, processing, and
storage of the information or performing research that requires access
to confidential information. Such persons are exempt from the
provisions of paragraph (c)(1) of this section.
(iii) Other NOAA employees on a demonstrable need-to-know basis.
(iv) Persons that need access to confidential information to
perform functions authorized under a Federal contract, cooperative
agreement, or grant awarded by NOAA/NMFS.
(3) Commission. (i) Confidential information will be subject to
disclosure to the Commission, but only if:
(A) The information is required to be submitted to the Commission
under the requirements of the WCPF Convention or the decisions of the
Commission;
(B) The provision of such information is in accord with the
requirements of the Act, the WCPF Convention, and the decisions of the
Commission, including any procedures, policies, or practices adopted by
the Commission relating to the receipt, maintenance, protection or
dissemination of information by the Commission; and
(C) The provision of such information is in accord with any
agreement between the United States and the Commission that includes
provisions to prevent public disclosure of the identity or business of
any person.
(ii) The provisions of paragraph (c)(1) of this section do not
apply to the release of confidential information to the Commission.
(4) State employees. Confidential information may be made
accessible to a State employee only by written request and only upon
the determination by NMFS that at least one of the following conditions
is met:
(i) The employee has a need for confidential information to further
the Department of Commerce's mission, and the State has entered into a
written agreement between the Assistant Administrator and the head of
the State's agency that manages marine and/or anadromous fisheries. The
agreement shall contain a finding by the Assistant Administrator that
the State has confidentiality protection authority comparable to the
Act and that the State will exercise this authority to prohibit public
disclosure of the identity or business of any person.
(ii) The employee enforces the Act or fishery management plans
prepared under the authority of the Magnuson-Stevens Conservation and
Management Act, and the State for which the employee works has entered
into a fishery enforcement agreement with the Secretary and the
agreement is in effect.
(5) Marine Fisheries Commission employees. Confidential information
may be made accessible to Marine Fisheries Commission employees only
upon written request of the Marine Fisheries Commission and only if the
request demonstrates a need for confidential information to further the
Department of Commerce's mission, and the executive director of the
Marine Fisheries Commission has entered into a written agreement with
the Assistant Administrator. The agreement shall contain a finding by
the Assistant Administrator that the Marine Fisheries Commission has
confidentiality protection policies and procedures to protect from
public disclosure information that would reveal the identity or
business of any person.
(6) Homeland and national security activities. Confidential
information may be made accessible to Federal employees for purposes of
promoting homeland security or national security at the request of
another Federal agency only if:
(i) Providing the information promotes homeland security or
national security purposes including the USCG's homeland security
missions as defined in section 888(a)(2) of the Homeland Security Act
of 2002 (6 U.S.C. 468(a)(2)); and
(ii) The requesting agency has entered into a written agreement
with the Assistant Administrator. The agreement shall contain a finding
by the Assistant Administrator that the requesting agency has
confidentiality policies and procedures to protect the information from
public disclosure.
(7) Observer and observer employer/observer provider. Confidential
information used for purposes other than those contained in this
subpart or in part 600 of this title may only be used by observers and
observer employers/observer providers in order:
(i) To adjudicate observer certifications;
(ii) To allow the sharing of observer information among the
observers and between observers and observer employers/observer
providers as necessary to train and prepare observers for deployments
on specific vessels; or
(iii) To validate the accuracy of the observer information
collected.
(8) Persons having access to confidential information may be
subject to criminal and civil penalties for unauthorized use or
disclosure of confidential information. See 18 U.S.C. 1905, 16 U.S.C.
1857, and NOAA/NMFS internal procedures, including NAO 216-100.
(d) Control system. (1) The Assistant Administrator maintains a
control system to protect the identity or business of any person who
submits information in compliance with any requirement or regulation
under the Act. The control system:
(i) Identifies those persons who have access to the information;
(ii) Contains procedures to limit access to confidential
information to authorized users; and
(iii) Provides handling and physical storage protocols for
safeguarding of the information.
(2) This system requires that all persons who have authorized
access to the information be informed of the confidentiality of the
information. These persons, with the exception of
[[Page 3354]]
employees and contractors of the Commission, are required to sign a
statement that they:
(i) Have been informed that the information is confidential; and
(ii) Have reviewed and are familiar with the procedures to protect
confidential information.
(e) Release of information. (1) The Assistant Administrator will
not disclose to the public any confidential information, except:
(i) When the Secretary has obtained from the person who submitted
the information an authorization to release the information to persons
for reasons not otherwise provided for in this subpart. In situations
where a person provides information through a second party, both
parties are considered joint submitters of information and either party
may request a release. The authorization to release such information
will require:
(A) A written statement from the person(s) who submitted the
information authorizing the release of the submitted information; and
(B) A finding by the Secretary that such release does not violate
other requirements of the Act or other applicable laws.
(ii) Observer information as authorized by a fishery management
plan (prepared under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act) or regulations under the authority of
the North Pacific Council to allow disclosure of observer information
to the public of weekly summary bycatch information identified by
vessel or for haul-specific bycatch information without vessel
identification.
(iii) When such information is required to be submitted for any
determination under a limited access program.
(iv) When required by a court order.
(2) All requests from the public for confidential information will
be processed in accordance with the requirements of 5 U.S.C. 552a, 15
CFR parts 4 and 903, NAO 205-14, and Department of Commerce
Administrative Orders DAO 205-12 and DAO 205-14. Nothing in this
section is intended to confer any right, claim, or entitlement to
obtain access to confidential information not already established by
law.
(3) NMFS does not release or allow access to confidential
information in its possession to members of advisory groups of the
Regional Fishery Management Councils established under the Magnuson-
Stevens Fishery Conservation and Management Act, except as provided by
law.
0
16. Section 300.221 is added to read as follows:
Sec. 300.221 Facilitation of enforcement and inspection.
In addition to the facilitation of enforcement provisions of Sec.
300.5, the following requirements apply to this subpart.
(a) A fishing vessel of the United States with a WCPFC Area
Endorsement or for which a WCPFC Area Endorsement is required,
including the vessel's operator and each member of the vessel's crew
shall, when in the Convention Area, be subject to the following
requirements:
(1) The Federal Certificate of Documentation or State or other
documentation for the vessel, or a copy thereof, shall be carried on
board the vessel. Any license, permit or other authorization to use the
vessel to fish, retain fish, transship fish, or land fish issued by a
nation or political entity other than the United States, or a copy
thereof, shall be carried on board the vessel. These documents shall be
made available for inspection by any authorized officer. If the vessel
is on the high seas, the above-mentioned licenses, permits, and
authorizations shall also be made available for inspection by any WCPFC
inspector. If the vessel is in an area under the jurisdiction of a
member of the Commission other than the United States, they shall be
made available for inspection by any authorized enforcement official of
that member.
(2) For the purpose of facilitating communication with the
fisheries management, surveillance and enforcement authorities of the
members of the Commission, the operator shall ensure the continuous
monitoring of the international safety and calling radio frequency
156.8 MHz (Channel 16, VHF-FM) and, if the vessel is equipped to do so,
the international distress and calling radio frequency 2.182 MHz (HF).
(3) The operator shall ensure that an up-to-date copy of the
International Code of Signals (INTERCO) is on board and accessible at
all times.
(4) When engaged in transshipment on the high seas or in an area
under the jurisdiction of a member of the Commission other than the
United States, the operator and crew shall:
(i) Provide any WCPFC transshipment monitor with full access to,
and use of, facilities and equipment which such authorized person may
determine is necessary to carry out his or her duties to monitor
transshipment activities, including full access to the bridge, fish on
board, and all areas which may be used to hold, process, weigh and
store fish, and full access to the vessel's records, including its log
and documentation for the purpose of inspection and photocopying;
(ii) Allow and assist any WCPFC transshipment monitor to collect
and remove samples and gather any other information required to fully
monitor transshipment activities.
(iii) Not assault, obstruct, resist, delay, refuse boarding to,
intimidate, harass, interfere with, unduly obstruct or delay any WCPFC
transshipment monitor in the performance of such person's duties, or
attempt to do any of the same.
(b) The operator and crew of a fishing vessel of the United States,
when on the high seas in the Convention Area, shall be subject to the
following requirements:
(1) The operator and crew shall immediately comply with
instructions given by an officer on board a WCPFC inspection vessel to
move the vessel to a safe location and/or to stop the vessel, provided
that the officer has, prior to the issuance of such instructions:
(i) Provided information identifying his or her vessel as a WCPFC
inspection vessel, including its name, registration number, IRCS and
contact frequency; and
(ii) Communicated to the vessel operator his or her intention to
board and inspect the vessel under the authority of the Commission and
pursuant to the boarding and inspection procedures adopted by the
Commission.
(2) The operator and crew shall accept and facilitate prompt and
safe boarding by any WCPFC inspector, provided that an officer on board
the WCPFC inspection vessel has, prior to such boarding:
(i) Provided information identifying his or her vessel as a WCPFC
inspection vessel, including its name, registration number, IRCS and
contact frequency; and
(ii) Communicated to the vessel operator an intention to board and
inspect the vessel under the authority of the Commission and pursuant
to the boarding and inspection procedures adopted by the Commission.
(3) Provided that the WCPFC inspector has presented to the vessel
operator his or her identity card identifying him or her as an
inspector authorized to carry out boarding and inspection procedures
under the auspices of the Commission, and a copy of the text of the
relevant conservation and management measures in force pursuant to the
WCPF Convention in the relevant area of the high seas, the operator and
crew shall:
(i) Cooperate with and assist any WCPFC inspector in the inspection
of
[[Page 3355]]
the vessel, including its authorizations to fish, gear, equipment,
records, facilities, fish and fish products and any relevant documents
necessary to verify compliance with the conservation and management
measures in force pursuant to the WCPF Convention;
(ii) Allow any WCPFC inspector to communicate with the crew of the
WCPFC inspection vessel, the authorities of the WCPFC inspection vessel
and the authorities of the vessel being inspected;
(iii) Provide any WCPFC inspector with reasonable facilities,
including, where appropriate, food and accommodation; and
(iv) Facilitate safe disembarkation by any WCPFC inspector.
(4) If the operator or crew refuses to allow a WCPFC inspector to
board and inspect the vessel in the manner described in this paragraph,
they shall offer to the WCPFC inspector an explanation of the reason
for such refusal.
(5) The operator and crew shall not assault, obstruct, resist,
delay, refuse boarding to, intimidate, harass, interfere with, unduly
obstruct or delay any WCPFC inspector in the performance of such
person's duties, or attempt to do any of the same.
(c) When a fishing vessel of the United States that is used for
commercial fishing for HMS is in the Convention Area and is either on
the high seas without a valid WCPFC Area Endorsement or is in an area
under the jurisdiction of a nation other than the United States without
an authorization by that nation to fish in that area, all the fishing
gear and fishing equipment on the fishing vessel shall be stowed in a
manner so as not to be readily available for fishing, specifically:
(1) If the fishing vessel is used for purse seining and equipped
with purse seine gear, the boom must be lowered as far as possible so
that the vessel cannot be used for fishing but so that the skiff is
accessible for use in emergency situations; the helicopter, if any,
must be tied down; and the launches must be secured.
(2) If the fishing vessel is used for longlining and equipped with
longline gear, the branch or dropper lines and floats used to buoy the
mainline must be stowed and not available for immediate use, and any
power-operated mainline hauler on deck must be covered in such a manner
that it is not readily available for use.
(3) If the fishing vessel is used for trolling and equipped with
troll gear, no lines or hooks may be placed in the water; if outriggers
are present on the vessel, they must be secured in a vertical position;
if any power-operated haulers are located on deck they must be covered
in such a manner that they are not readily available for use.
(4) If the fishing vessel is used for pole-and-line fishing and
equipped with pole-and-line gear, any poles rigged with lines and hooks
must be stowed in such a manner that they are not readily available for
use.
(5) For any other type of fishing vessel, all the fishing gear and
equipment on the vessel must be stowed in a manner so as not to be
readily available for use.
(d) For the purpose of this section, the meaning of transshipment
does not include transfers that exclusively involve fish that have been
previously landed and processed.
0
17. In Sec. 300.222, paragraphs (a) through (u) are added to read as
follows:
Sec. 300.222 Prohibitions.
* * * * *
(a) Fail to obtain and have on board a fishing vessel a valid WCPFC
Area Endorsement as required in Sec. 300.212.
(b) Fail to report a change in the information required in an
application for a WCPFC Area Endorsement as required in Sec.
300.212(g).
(c) Fail to provide information on vessels and fishing
authorizations or fail to report changes in such information as
required in Sec. 300.213.
(d) Fish for, retain on board, or land fish, including HMS, in
areas under the jurisdiction of a nation other than the United States
without authorization by such nation to do so, as provided in Sec.
300.214(a)(1) and (b)(1).
(e) Operate a fishing vessel in violation of, or fail to ensure the
vessel crew complies with, the applicable national laws of a member of
the Commission other than the United States, including any laws related
to carrying vessel observers or the operation of VMS units, as provided
in Sec. 300.214(a)(2) and (b)(2).
(f) Fail to carry, allow on board, or assist a WCPFC observer as
required in Sec. 300.215.
(g) Assault, obstruct, resist, delay, refuse boarding to,
intimidate, harass, or interfere with a WCPFC observer, or attempt to
do any of the same, or fail to provide a WCPFC observer with food,
accommodation or medical facilities, as required in Sec. 300.215.
(h) Offload, receive, or load fish from a purse seine vessel at sea
in the Convention Area, in contravention of Sec. 300.216.
(i) Fail to mark a fishing vessel or a boat, skiff, or other
watercraft on board the fishing vessel as required in Sec. 300.217, or
remove, obscure, or obstruct such markings, or attempt to do so.
(j) Fail to maintain and report catch and effort information or
transshipment information as required in Sec. 300.218.
(k) Fail to install, activate, or operate a VMS unit as required in
Sec. 300.219(c).
(l) In the event of VMS unit failure or interruption, fail to
repair or replace a VMS unit, fail to notify the SAC and follow the
instructions provided, or otherwise fail to act as provided in Sec.
300.219(c)(4).
(m) Disable, destroy, damage or operate improperly a VMS unit
installed under Sec. 300.219, or attempt to do any of the same, or
fail to ensure that its operation is not impeded or interfered with, as
provided in Sec. 300.219(e).
(n) Fail to make a VMS unit installed under Sec. 300.219 or the
position data obtained from it available for inspection, as provided in
Sec. 300.219(f) and (g).
(o) Fail to carry on board and monitor communication devices as
required in Sec. 300.219(h).
(p) Fail to carry on board and make available the required vessel
documentation and authorizations as required in Sec. 300.221(a)(1).
(q) Fail to continuously monitor the specified radio frequencies as
required in Sec. 300.221(a)(2).
(r) Fail to carry on board, and keep accessible, an up-to-date copy
of the International Code of Signals as required in Sec.
300.221(a)(3).
(s) Fail to provide access to, or fail to allow and assist, a WCPFC
transshipment monitor as required in Sec. 300.221(a)(4).
(t) Fail to comply with the instructions of, or fail to accept and
facilitate prompt and safe boarding by, a WCPFC inspector, or fail to
cooperate and assist a WCPFC inspector in the inspection of a fishing
vessel, as provided in Sec. 300.221(b).
(u) Fail to stow fishing gear or fishing equipment as required in
Sec. 300.221(c).
* * * * *
[FR Doc. 2010-1087 Filed 1-20-10; 8:45 am]
BILLING CODE 3510-22-P