Rule2021-14256
International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Requirements To Safeguard Fishery Observers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 7, 2021
Effective
August 6, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
Under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act), NMFS issues this final rule establishing requirements to safeguard fishery observers and establishing pre-trip notification procedures for observer placement. This action is necessary to satisfy 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), to which it is a Contracting Party.
Full Text
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<title>Federal Register, Volume 86 Issue 127 (Wednesday, July 7, 2021)</title>
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[Federal Register Volume 86, Number 127 (Wednesday, July 7, 2021)]
[Rules and Regulations]
[Pages 35653-35659]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-14256]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 210629-0138]
RIN 0648-BG66
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Requirements To Safeguard Fishery
Observers
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Under authority of the Western and Central Pacific Fisheries
Convention Implementation Act (WCPFC Implementation Act), NMFS issues
this final rule establishing requirements to safeguard fishery
observers and establishing pre-trip notification procedures for
observer placement. This action is necessary to satisfy 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), to which it is a Contracting Party.
DATES: This rule is effective on August 6, 2021.
ADDRESSES: Copies of supporting documents prepared for this final rule,
including the regulatory impact review (RIR), as well as the proposed
rule (85 FR 66513; October 20, 2020), are available via the Federal e-
rulemaking Portal, at <a href="http://www.regulations.gov">www.regulations.gov</a> (search for Docket ID NOAA-
NMFS-2020-0125). Those documents are also available from NMFS at the
following address: Michael D. Tosatto, Regional Administrator, NMFS,
Pacific Islands Regional Office (PIRO), 1845 Wasp Blvd., Building 176,
Honolulu, HI 96818.
A final regulatory flexibility analysis (FRFA) prepared under
authority of the Regulatory Flexibility Act is included in the
Classification section of the SUPPLEMENTARY INFORMATION section of this
document.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule may be submitted to PIRO at the address listed above, by email to
<a href="/cdn-cgi/l/email-protection#46090f1407191533242b2f35352f292806292b246823293668212930"><span class="__cf_email__" data-cfemail="5a1513081b05092f38373329293335341a353738743f352a743d352c">[email protected]</span></a>, or by fax to (202) 395-5806.
FOR FURTHER INFORMATION CONTACT: Valerie Post, NMFS PIRO, 808-725-5034.
SUPPLEMENTARY INFORMATION:
Background
On October 20, 2020, NMFS published a proposed rule in the Federal
Register (85 FR 66513) proposing to establish requirements to safeguard
fishery observers and to establish pre-trip notification procedures for
observer placement. The 30-day public comment period for the proposed
rule closed on November 19, 2020.
The final rule is issued under the authority of the WCPFC
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the
Secretary of Commerce, in consultation with the Secretary of State and
the Secretary of the Department in which the United States Coast Guard
is operating (currently the Department of Homeland Security), to
promulgate such regulations as may be necessary to carry out the
obligations of the United States under the Convention, including the
decisions of the Commission for the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(WCPFC or Commission). The WCPFC Implementation Act further provides
that the Secretary of Commerce shall ensure consistency, to the extent
practicable, of fishery management programs administered under the
WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation
and Management Act (MSA; 16 U.S.C. 1801 et seq.), as well as other
specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has
delegated the authority to promulgate regulations under the WCPFC
Implementation Act to NMFS. A map showing the boundaries of the area of
application of the Convention (Convention Area), which comprises the
majority of the WCPO, can be found on the WCPFC website at:
<a href="http://www.wcpfc.int/doc/convention-area-map">www.wcpfc.int/doc/convention-area-map</a>.
This final rule implements specific provisions of Conservation and
Management Measure (CMM) 2017-03, ``Conservation and Management Measure
for WCPFC Regional Programme Observers,'' as well as establishes pre-
trip notification procedures for observer placement. The preamble to
the proposed rule provides background information, including
information on the Convention and the Commission, the provisions that
are being implemented in this rule, and the basis for the regulations,
which is not repeated here.
The Action
The specific elements of the final rule are detailed below.
1. Observer Safety Requirements
This final rule implements specific requirements for vessel owners
and operators to help ensure the safety of WCPFC observers.\1\ CMM
2017-03 describes requirements for vessel owners and operators
specifically related to vessel operations, notification, search and
rescue procedures, and investigations in the event of death, injury,
serious illness, missing overboard, or harassment of a WCPFC observer.
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\1\ A WCPFC observer is a person authorized by the Commission in
accordance with any procedures established by the Commission to
undertake vessel observer duties as part of the Commission's
Regional Observer Programme (ROP), including an observer deployed as
part of a NMFS-administered observer program or as part of another
national or sub-regional observer program, provided that such
program is authorized by the Commission to be part of the
Commission's ROP (see 50 CFR 300.211).
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NMFS is not promulgating additional regulations in the event of
death, loss or serious injury as they would be duplicative of U.S.
Coast Guard regulations on marine casualties and investigations at 46
CFR part 4.
Under the final rule, vessel owners and operators are required to
notify the designated authorities as specified by the Regional
Administrator at <a href="https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels">https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels</a> in the event of serious illness, assault, intimidation,
threats, interference, or harassment of a WCPFC observer. NMFS has
created a website that provides specific contact information of the
designated authorities, including emails and phone numbers. At this
time, NMFS has identified the observer provider and NOAA Office of Law
Enforcement Pacific Islands Division Duty Officer as contacts in the
event of serious assault,
[[Page 35654]]
intimidation, threats, interference or harassment of a WCPFC observer,
and the NOAA Office of Law Enforcement in the event of serious illness.
Any changes or updates to these contacts will be posted on the website.
Owners and operators are required to immediately notify the contacts of
the situation and the status and location of the observer.
NMFS does not maintain a 24-hour hotline to handle search and
rescue or urgent law enforcement response. Thus, in emergency
situations that need an immediate response, vessel owners and operators
are encouraged to contact the nearest U.S. Coast Guard Rescue
Coordination Center (RCC) that can help coordinate with the closest
Search and Rescue (SAR) facility in the area of the vessel: <a href="https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Response-Policy-CG-5R/Office-of-Incident-Management-Preparedness-CG-5RI/US-Coast-Guard-Office-of-Search-and-Rescue-CG-SAR/RCC-Numbers/">https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Response-Policy-CG-5R/Office-of-Incident-Management-Preparedness-CG-5RI/US-Coast-Guard-Office-of-Search-and-Rescue-CG-SAR/RCC-Numbers/</a>.
In addition, under the final rule, the vessel owner or operator
would be required to follow certain procedures in the event of serious
illness, assault, intimidation, threats, interference or harassment of
a WCPFC observer. The rule would require that, in these cases, the
owner or operator of the fishing vessel must: (1) Immediately cease
fishing operations; (2) take all reasonable actions to care for the
observer and provide any medical treatment available and possible on
board the vessel; (3) where directed by the observer provider, if not
already directed by the appropriate U.S. Government contact, facilitate
the disembarkation and transport of the observer to a medical facility
equipped to provide the required care, as soon as practicable; and (4)
cooperate fully in any official investigations into the cause of the
illness or incident.
As stated above, the final rule specifies that the owner or
operator of the fishing vessel must ``immediately cease fishing
operations'' in the event of serious illness, assault, intimidation,
threats, interference or harassment of a WCPFC observer. NMFS
anticipates that there may be circumstances where ``immediately cease''
could allow for gear to be retrieved and NMFS does not encourage
abandoning fishing gear. Although the owner or operator of a vessel is
required to immediately cease fishing operations, this rule would not
prohibit reasonable steps to recover gear and catch, if appropriate
under the circumstances.
2. Pre-Trip Notification Procedures for Vessels Requiring a WCPFC
Observer
To facilitate the placement of WCPFC observers on U.S. purse seine
vessels when departing from American Samoa, this final rule requires
U.S. purse seine vessel owners and operators to submit notifications to
NMFS at least five business days before expected departure. The
notification must include the name of the vessel, name of the operator
of the vessel, telephone number or email at which the owner or operator
may be contacted, and intended departure date.
As stated in the preamble to the proposed rule, after reviewing the
current administrative process for observer placements, NMFS believes
such notifications are needed to facilitate observer placement for
trips departing from American Samoa.
NMFS notes that a variety of factors may influence a vessel's
departure date, including the availability of an observer. Pursuant to
the South Pacific Tuna Treaty (SPTT) and through a separate contractual
agreement between the American Tunaboat Association (ATA) and the
Pacific Islands Forum Fisheries Agency (FFA), U.S. purse seine vessels
carry observers deployed by the FFA Observer Program. FFA observers are
authorized WCPFC observers and are nationals of Pacific Island
countries. Currently, NMFS coordinates with FFA and places WCPFC
observers on U.S. purse seine vessels departing from American Samoa. As
such, NMFS cannot guarantee that an observer will be placed within five
business days of a request. Similarly, an observer may be placed
earlier than five business days from intended departure (e.g., an
observer on board the vessel decides to continue on board for another
trip), in which case the vessel may leave port earlier than the
intended departure date specified in the notification. NMFS is
clarifying in this final rule that the departure date submitted in the
notification is the vessel owner or operator's intended departure date
and not necessarily the date the vessel actually leaves port.
In the proposed rule, NMFS also proposed a pre-trip notification
requirement of five business days prior to expected departure for
vessels requesting a cross-endorsed observer.\2\ This requirement would
have applied to vessels of any gear type requesting a cross-endorsed
observer though to-date only U.S. purse seine vessels have used cross-
endorsed observers. NMFS has reviewed its existing processes for cross-
endorsed observer requests, including a pre-trip notification
requirement of at least five days prior to vessel departure at 50 CFR
216.24(b)(8)(iv)(A) for requests for cross-endorsed observers in the
eastern Pacific Ocean (EPO), which became effective on September 18,
2020 (85 FR 58297; September 18, 2020). As the requirements for the EPO
for requesting a cross-endorsed observer also apply to those purse
seine vessels in the WCPO requesting a cross-endorsed observer, NMFS
has decided not to implement the cross-endorsed observer notification
requirements specified in the proposed rule.
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\2\ A cross-endorsed observer is an observer that is ``cross-
endorsed'' pursuant to a Memorandum of Cooperation between the
Commission and the Inter-American Tropical Tuna Commission (IATTC)
that specifies a process to allow the observer to meet the observer
requirements of both organizations.
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Public Comments and Responses
NMFS received two comment letters on the proposed rule. Below, NMFS
summarizes the matters raised in each of the individual comment
letters, grouping similar comments together, and provides a response to
each of these matters.
Comment 1: One commenter provided a general statement of support
for the proposed rule so that observers would be protected when
carrying out their duties. Another commenter provided a statement of
support for NMFS to implement CMM 2017-03 and to protect observer
health and safety.
Response: NMFS acknowledges the comments.
Comment 2: One commenter noted that CMM 2017-03 and the proposed
regulatory language outline requirements for vessel owners or operators
to follow in the event that an observer is seriously ill and
requirements for vessel owners and operators to follow in the event of
assault, intimidation, threats or harassment, but that the proposed
rule's preamble erroneously characterized the requirements as being the
same for the two types of events. The commenter requested that the
final rule correct this misstatement and clarify that the regulatory
language of the proposed rule and the provisions of CMM 2017-03 are
what NMFS is promulgating.
Response: NMFS agrees that CMM 2017-03 describes specific
requirements in the event that an observer is seriously ill and
specific requirements in the event that an observer has been assaulted,
intimidated, threatened or harassed. Although NMFS described the
processes as similar in the proposed rule's preamble, the proposed
regulatory text clearly differentiated between the events, in
accordance with the language in CMM 2017-03. NMFS clarifies here
[[Page 35655]]
that in the event of serious illness, the owner and operator of the
fishing vessel must: (1) Immediately cease fishing operations, (2) take
all reasonable action to care for the observer and provide any medical
treatment available and possible aboard the vessel; (3) where directed
by the observer provider, if not already directed by the appropriate
U.S. Government contact, facilitate the disembarkation and transport of
the observer to a medical facility equipped to provide the required
care, as soon as practicable, and (4) cooperate fully in any official
investigation as to the cause of the illness. Additionally, in the
event that an observer has been assaulted, intimidated, threatened or
harassed, the owner and operator of the fishing vessel must: (1)
Immediately take action to preserve the safety of the observer and
mitigate and resolve the situation on board; (2) if the observer or the
observer provider indicate that they wish to be removed from the
vessel, facilitate the safe disembarkation of the observer in a manner
and place, as agreed by the observer provider and a U.S. Government
contact, that facilitates access to any needed medical treatment; and
(3) cooperate fully in any official investigations into the incident.
Comment 3: One commenter requested that NMFS clarify that the
observer safety protocols applicable to where an observer has been
assaulted, intimidated, threatened, or harassed are triggered only
where the vessel owner or operator either: (1) Has firsthand knowledge
that the observer was assaulted, intimidated, threatened, or harassed
(i.e., saw or overhead the problem); or (2) where the vessel owner or
operator has been presented with objective evidence from the observer
or others clearly showing that the observer has been assaulted,
intimidated, threatened, or harassed. The commenter stated that a
response to mere allegations of harassment could result in costly
ramifications if they are unjustified. The commenter noted that the
proposed rule calculated the potential foregone opportunity for purse
seine vessels as high as the revenue from a trip at $1.4 million
dollars, and asserted that the costs were disproportionate compared to
other fisheries being regulated under the same rule. The commenter
stated that these clarifications are necessary to ensure that vessel
owners and operators are afforded appropriate due process protections
and that compliance costs and penalties are fairly applied. The
commenter stated that without amendment or clarification by NMFS, the
proposed rule could subject vessel owners or operators to penalties for
not immediately knowing that one of the conditions triggering a set of
duties has occurred. Although the commenter stated that NMFS would
likely not impose penalties for not taking quick enough action where
delay primarily was attributable to neither the vessel owner nor
operator knowing about the observer's illness or other issues, the
commenter requested that NMFS clarify that the respective duties to act
are triggered when either the vessel owner or operator knows of the
observer's condition triggering the duties.
Response: CMM 2017-03 does not qualify that these protocols are
only triggered if vessel owners and operators have firsthand knowledge
or have an evidentiary standard. Moreover, as discussed in the RIR,
NMFS projects that these incidents will occur infrequently. Thus, NMFS
does not believe it appropriate to limit the protocols accordingly.
Under the regulations at 50 CFR 300.43(a)(3), purse seine vessels
operating under the SPTT, which includes most purse seine vessels
fishing within the Convention Area, are required to disembark observers
at the point and time notified by the FFA to the U.S. Government. This
requirement is already in place and is not limited to observer safety-
related events. NMFS also notes that similar observer safety protocol
requirements to this rule are also already in place for vessels
operating in the EPO under regulations at 50 CFR 300.29 so vessels
operating in the EPO are already subject to them.
The intent of this rulemaking is protect observer safety and not
necessarily to pre-judge the outcome of any investigation. NMFS
disagrees with the statement that the proposed text does not afford due
process protections. The rule will encourage owners and operators of
U.S. purse seine vessels to take affirmative steps to train their crews
and to prevent acts of harassment against observers. Under CMM 2017-03,
the United States has the responsibility under the CMM to investigate
any alleged incidents.
Moreover, NMFS believes the rule would not have disproportionate
effects on purse seine vessels, but rather would affect all vessels
equally in proportion to their individual trip costs.
Comment 4: One commenter stated that they opposed the proposed
change to require purse seine vessels to provide pre-trip notifications
and requests for observers because the scope of the requirement is not
clear. The commenter stated that the preamble described reasons for the
need for pre-trip notification for trips departing from American Samoa,
but did not feel that the preamble identified specific shortcomings or
deficiencies to the current process that justified the new requirement.
The commenter noted that purse seine vessels cannot depart unless an
observer is onboard, and did not feel there was sufficient explanation
as to why the pre-trip notification requirement applies to when
requesting a cross-endorsed observer and when departing from ports
other than American Samoa. The commenter stated that they believed that
the pre-trip notification requirement of five business days prior to
trip departure would restrict operational flexibility and would result
in larger costs to purse seine vessels than what are described in the
proposed rule. The commenter requested that the pre-trip notification
period be shortened to 48 hours if NMFS believes there is a real need
for the requirement. Finally, the commenter requested confirmation that
the pre-trip notification requirement does not apply to owners and
operators of purse seine vessels picking up observers at ports other
than American Samoa if they are not seeking a cross-endorsed observer.
Response: NMFS confirms that the pre-trip notification requirements
apply to purse seine vessels requesting a WCPFC observer and departing
from American Samoa and the requirements do not apply to vessels
picking up observers at ports other than American Samoa. As discussed
above, NMFS has also re-evaluated the need for pre-trip notification
for vessels requesting placement of a cross-endorsed observer
regardless of port of departure, and decided not to implement this
requirement in this final rule because a similar requirement for cross-
endorsed observer requests has already been implemented at 50 CFR
216.24(a)(8)(iv).
NMFS continues to believe that the notification prior to a trip is
necessary for purse seine trips departing from American Samoa and
requesting a WCPFC observer.
NMFS facilitates entry into American Samoa for WCPFC observers
being placed on purse seine vessels. If adequate pre-trip notification
is not given, entry into American Samoa may be delayed and this could
delay placement of the observer and therefore vessel departure. As the
placement of WCPFC observers on purse seine vessels is provided
currently by FFA, vessel owners and operators have an incentive to
ensure that adequate notice is given to ensure that observers can
travel to the port of departure. Given that these observers are
nationals from other countries, NMFS assists with obtaining the
necessary entry permits into
[[Page 35656]]
American Samoa. NMFS commits significant resources facilitating the
deployment of these observers in Pago Pago. The requirements in this
final rule formalize an informal process that is already in place.
As stated above, this rule does not guarantee that a WCPFC observer
will be placed on board a purse seine vessel within five business days
of a notification being submitted. Similarly, as the commenter noted
there may be circumstances in which a WCPFC observer is already in
American Samoa and fewer than five days may be needed for an observer
to be placed on a purse seine vessel in those circumstances. NMFS
acknowledges that there may be times where observer placement could
occur more quickly. In this final rule NMFS has changed the regulatory
text so that the date that must be provided in the notification is the
intended date and not necessarily the date the vessel leaves port.
NMFS does not believe that the pre-trip notification requirement
would restrict operational flexibility for purse seine vessels.
Changes From the Proposed Rule
This final rule includes four changes to the regulatory text from
the proposed rule. NMFS has removed the regulatory text requiring pre-
trip notification requests for cross-endorsed observers, as well as the
definition of WCPFC-IATTC cross-endorsed observer associated with that
requirement. NMFS has also changed the timing of the pre-trip
notification requirement at 50 CFR 300.215(d)(2) for purse seine
vessels departing from American Samoa such that the notification must
be submitted at least five business days before the vessel owner's or
operator's intended departure date rather than the actual departure
date. NMFS has made editorial changes to correctly spell the WCPFC
Regional Observer Programme in 50 CFR 300.215(f). NMFS also added
paragraph (aaa) in 50 CFR 300.222 prohibiting the failure to provide
pre-trip notification.
Classification
The Administrator, Pacific Islands Region, NMFS, has determined
that this final rule is consistent with the WCPFC Implementation Act
and other applicable laws.
Coastal Zone Management Act (CZMA)
NMFS determined that this action is consistent to the maximum
extent practicable with the enforceable policies of the approved
coastal management program of American Samoa, the Commonwealth of the
Northern Mariana Islands (CNMI), Guam, and the State of Hawaii. NMFS
submitted determinations to Hawaii and each of the Territories on March
16, 2020, for review by the responsible state and territorial agencies
under section 307 of the CZMA. Hawaii replied by letter dated March 19,
2020, stating that, because the proposed rule is outside of the
jurisdiction of the Hawaii Coastal Zone Management Program's
enforceable policies, it would not be responding to the consistency
determination. The CNMI replied by letter dated May 12, 2020, stating
that based on the information provided, it has determined that the
action will be undertaken in a manner that is consistent to the maximum
extent practicable with the enforceable policies of the CNMI's coastal
management program. Guam replied by letter dated May 27, 2020, stating
that based on the information provided, it has determined that the
action will be consistent with the enforceable policies of Guam's
Coastal Management Program. No response was received from American
Samoa, and thus, concurrence with the respective consistency
determinations is presumed (15 CFR 930.41).
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act (RFA)
A final regulatory flexibility analysis (FRFA) was prepared, as
required by section 604 of the RFA. The FRFA incorporates the initial
regulatory flexibility analysis (IRFA) prepared for the proposed rule.
The analysis in the IRFA is not repeated here in its entirety. A
description of the action, why it is being considered, and the legal
basis for this action are contained in the SUMMARY section and this
SUPPLEMENTARY INFORMATION section of the preamble of this final rule.
The FRFA analysis follows: Significant Issues Raised by Public Comments
in Response to the IRFA
See comment three and response by NMFS above for matters raised
regarding the IRFA, which pertains to potential disproportionate burden
for purse seine vessels.
Description of Small Entities to Which the Rule Will Apply
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (50 CFR 200.2). A business primarily
engaged in commercial fishing (NAICS code 114111) is classified as a
small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $11 million for all its
affiliated operations worldwide.
This final rule would apply to owners and operators of U.S.
commercial fishing vessels that fish for highly migratory species (HMS)
in the Convention Area that: (1) Carry a WCPFC Observer or (2) purse
seine for HMS in the Convention Area. This includes vessels in the
purse seine, longline, and albacore troll fleets. The estimated number
of affected fishing vessels is as follows based on the number of
vessels on the WCPFC Record of Fishing Vessels as of March 2, 2021: 20
Purse seine vessels, 154 longline vessels, and 27 albacore troll
vessels. Thus, the total estimated number of commercial fishing vessels
that would be subject to the rule is 201. The purse seine vessels
operating in the Convention Area generally land in American Samoa and
other ports in Pacific Islands, the longline vessels operating in the
Convention Area generally land in American Samoa and Hawaii, and the
albacore troll vessels operating in the Convention Area generally land
their catch in California, Oregon, Washington, or Canada.
Based on (limited) financial information about the affected fishing
fleets, and using individual vessels as proxies for individual
businesses, NMFS believes that all the affected fish harvesting
businesses in all the fleets, except the purse seine fleet, are small
entities as defined by the RFA; that is, they are independently owned
and operated and not dominant in their fields of operation, and have
annual receipts of no more than $11.0 million. Within the purse seine
fleet, analysis of average revenue, by vessel, for 2017-2019 reveals
that average fleet revenue was $8,212,000 (NMFS unpublished data
combined with price data from <a href="https://www.ffa.int/node/425">https://www.ffa.int/node/425</a> and <a href="https://www.wcpfc.int/node/46580">https://www.wcpfc.int/node/46580</a> accessed on July 27, 2020); however, 14
participating vessels qualified as small entities with their average of
the most recent three years of vessel revenue for which data is
available of less than $11 million. Within the Hawaii based longline
fleet, an average of 146 vessels recorded landings during 2017-2019
with a average vessel revenue of approximately $828,000 per vessel
(estimate calculated using data from the 2019 Pelagic Fishery Ecosystem
Plan Stock Assessment and Fishery Evaluation Report and Annual Reports
of the Hawaii Longline Fishery). For the
[[Page 35657]]
American Samoa based longline fleet, an average of 15 vessels recorded
landings during 2017-2019 with average vessel revenue of approximately
$339,000 per vessel (estimate calculated using data from the 2019
Pelagic Fishery Ecosystem Plan Stock Assessment and Fishery Evaluation
Report and Annual Reports of the American Samoa Longline Fishery). None
of the other potentially directly regulated fishing sectors had total
fishery revenue of all vessels combined that exceeded the small entity
threshold.
Recordkeeping, Reporting, and Other Compliance Requirements
The reporting, recordkeeping and other compliance requirements of
this final rule are described earlier in the preamble. The classes of
small entities subject to the requirements and the expected costs of
complying with the requirements are described above in the
Classification section of this final rule.
As described in the Paperwork Reduction Act (PRA) subsection below,
this final rule contains a revised collection-of-information
requirement subject to review and approval by the Office of Management
and Budget (OMB) under the PRA.
Fulfillment of the requirements under the final rule is not
expected to require any professional skills that affected vessel owners
and operators do not already possess.
(1) Reporting requirements when carrying a WCPFC observer: This
requirement is part of a proposed collection of information subject to
approval by OMB under the PRA. It would apply to about 195 small
business entities, (derived from subtracting the six vessels that do
not qualify as small business entities from 201, the number of fishing
vessels affected by this rule as estimated from vessels with WCPFC area
endorsements). Complying would require that owners and operators of
purse seine, longline and troll vessels to contact NMFS in the event of
serious illness, assault, intimidation, threats, interference, or
harassment of a WCPFC observer. NMFS estimates the cost of compliance
as the cost of a five minute phone call though the cost of compliance
could vary depending on the directions given by NMFS. NMFS cannot
project how many calls would occur, but from 2015-2019, NOAA Office of
Law Enforcement charged a total of six cases of harassment against
purse seine and longline vessels in the Pacific Islands Region. Thus,
NMFS expects events of serious illness, assault, intimidation, threats,
interference, or harassment of a WCPFC observer to occur very rarely
(average of one per year) and thus the cost of reporting to be very
small. The Commission has indefinitely deferred implementation of
placing WCPFC observers on troll vessels, and for the foreseeable
future, NMFS does not believe that this requirement would add any new
compliance costs for troll vessels. If the Commission were to change
its position on placing WCPFC observers on troll vessels, troll
operators may incur compliance costs similar to those described above.
Fulfillment of this requirement is not expected to require any
professional skills that the vessel owners and operators do not already
possess.
(2) Requirement to ensure observer safety: This requirement is
outside of the proposed collection of information under the PRA. In the
event of serious illness, assault, intimidation, threats, interference
or harassment of a WCPFC observer, the proposed rule would require the
owner or operator of the fishing vessel to: (1) Immediately cease
fishing operations; (2) take all reasonable actions to care for the
observer and provide any medical treatment available and possible on
board the vessel; (3) where directed by the observer provider, if not
already directed by the appropriate U.S. Government contact, facilitate
the disembarkation and transport of the observer to a medical facility
equipped to provide the required care, as soon as practicable; and (4)
cooperate fully in any official investigations into the cause of the
illness. NMFS cannot project how often this would occur, but
anticipates these events to occur rarely. As mentioned above, NOAA
Office of Law Enforcement has charged six cases of harassment against
purse seine and longline vessels over 2015-2019 in the Pacific Islands
Region, which equates to approximately one per year. If such an event
does occur, the impacts could vary depending on when the event occurs
and what foregone opportunity is lost. For illustrative purposes, the
average gross revenue of a U.S. purse seine fishing trip from 2017-2019
was a little under $1.4 million per trip (calculated by multiplying
Bangkok fish prices by average catch per trip using NMFS data) so if an
event occurred near the start of a fishing trip, the vessel could
potentially forgo much of that revenue along with any trip costs
already incurred. For U.S. longline vessels the average gross revenue
from 2017-2019 (calculated using nominal revenue and trip information
from the 2019 Pelagic Fishery Ecosystem Plan Stock Assessment and
Fishery Evaluation Report) was around $664,000 per Hawaii-based deep-
set trip, $64,000 per Hawaii-based shallow-set trip, and $39,000 per
American Samoa-based trip so if an event occurred near the start of a
fishing trip, the vessel could potentially forgo much of that revenue
along with any trip costs already incurred.
(3) Notification requesting a WCPFC Observer: This requirement is
part of a proposed collection of information subject to approval by OMB
under the PRA. It would apply to about 199 small business entities.
Vessels are already required to provide notification prior to trip
departure if they intend to transship at sea, and this proposed
requirement would expand notification requirements to purse seine
vessels requesting a WCPFC observer and departing from American Samoa.
The proposed requirement may result in compliance costs for purse
seine vessels requesting a WCPFC observer when departing from American
Samoa. It is estimated that each notification would require 1 minute of
labor and about $1 in communication costs. The value of the required
labor is estimated to be $24.42 per hour. The estimated cost of
compliance is less than $2 per notification. The number of requests and
notifications cannot be predicted with any certainty, but for the
purpose of this analysis, each purse seine vessel is expected to make
3.57 requests or notifications per year related to WCPFC observers
(estimate based on the average number of trips per year from 2016-2020
divided by 20, the number of expected potential respondents). The
estimated cost of compliance is therefore expected to be $4.96 for a
vessel that makes 3.57 pre-trip notifications per year.
Duplicating, Overlapping, and Conflicting Federal Regulations
NMFS has not identified any Federal regulations that conflict with
these regulations. NMFS has identified several Federal regulations that
overlap with the final rule:
As mentioned above, the U.S. Coast Guard has regulations at 46 CFR
part 4 relating to marine casualties. This final rule implements the
requirements of CMM 2017-03 that are not marine casualties covered by
the existing U.S. Coast Guard regulations.
IATTC adopted Resolution C 18-07 on Observer Safety, and NMFS
published a final rule on May 18, 2020 (85 FR 29666) related to actions
required in the event of loss of life, serious illness or injury and
assault, intimidation, threats or harassment to observers on vessels
that are on fishing
[[Page 35658]]
trips in the IATTC Area. The regulations in this final rule and the
regulations applicable to the IATTC Area would apply to WCPFC observers
that are on vessels that are fishing in the IATTC Area, such as WCPFC
observers that are also cross-endorsed observers. In this case, there
would be overlapping regulations, but NMFS has ensured consistency in
the protocols and in the contacts required in the event of serious
illness, assault, intimidation, threats or harassment such that both
requirements for notification would be satisfied with one notification.
Alternatives to the Final Rule
NMFS has not been able to identify any alternatives that would
minimize any significant economic impact of the final rule on small
entities. NMFS rejected the alternative of taking no action at all
because it would be inconsistent with the United States' obligations
under the Convention. As a Contracting Party to the Convention, the
United States is required to implement the decisions of the WCPFC.
Consequently, NMFS has limited discretion as to how to implement those
decisions.
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 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. NMFS has
prepared a small entity compliance guide for this rule, and will send
copies of the appropriate guide to holders of permits in the relevant
fisheries. The guide and this final rule also will be available via the
Federal e-rulemaking Portal, at <a href="http://www.regulations.gov">www.regulations.gov</a> (search for ID
NOAA-NMFS-2020-0125) and by request from NMFS PIRO (see ADDRESSES).
Paperwork Reduction Act
This final rule contains a collection-of-information requirement
subject to review and approval by OMB under the PRA. This rule changes
the existing requirements for the collection of information 0648-0649,
``Transshipment Requirements Under the WCPFC,'' and requires reporting
in the event of serious illness, assault, intimidation, threats,
interference, or harassment of a WCPFC observer as well as pre-trip
notifications for purse seine vessels requesting a purse seine observer
and departing from American Samoa. Public reporting burden for
reporting events of serious illness, assault, intimidation, threats, or
harassment of a WCPFC observer is estimated to be 5 minutes per
response, and public reporting burden for purse seine vessels
requesting a purse seine observer and departing from American Samoa is
estimated to average 1 minute per response, including the time for
reviewing instructions searching existing data sources, gathering and
maitnaing the data needed and completing and reviewing the collection
of information.
At the proposed rule stage, NMFS had considered revising Control
Number 0648-0214, ``Pacific Islands Region Logbook Family of Forms'' to
include the observer safety collection of information requirements for
longline vessels. NMFS now believes that it makes more sense to include
the observer safety collection of information requirements for all gear
types in Control Number 0648-0649, ``Transshipment Requirements Under
the WCPFC'', so the 0648-0214 collection will not be revised.
We invite the general public and other Federal agencies to comment
on proposed and continuing information collections, which helps us
assess the impact of our information collection requirements and
minimize the public's reporting burden. Written comments and
recommendations for this information collection should be submitted at
the following website <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this
particular information collection by using the search function and
entering either the title of the collection or the OMB Control Number
0648-0649.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: June 29, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300 is amended
as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart O--Western and Central Pacific Fisheries for Highly
Migratory Species
0
1. The authority citation for 50 CFR part 300, subpart O, continues to
read as follows:
Authority: 16 U.S.C. 6901 et seq.
0
2. In Sec. 300.215, revise paragraph (b) and add paragraph (f) to read
as follows:
Sec. 300.215 Observers.
* * * * *
(b) Notifications. (1) If a fishing vessel of the United States
used for commercial fishing for HMS in the Convention Area intends to
conduct transshipments at sea, the owner or operator of that fishing
vessel is required to carry a WCPFC observer under paragraph (d) of
this section during the fishing trip and shall notify the Pacific
Islands Regional Administrator of the need for a WCPFC observer at
least 72 hours (exclusive of weekends and Federal holidays) before the
vessel leaves port on the fishing trip. The notice shall be provided to
the Observer Placement Contact specified by the Pacific Islands
Regional Administrator and must include the official number of the
vessel, the name of the vessel, the intended departure date, time, and
location, the name of the operator of the vessel, and a telephone
number at which the owner, operator, or a designated agent may be
contacted during the business day (8 a.m. to 5 p.m. Hawaii Standard
Time). If applicable, this notice may be provided in conjunction with
the notice required under Sec. 665.803(a) of this title.
(2) In order to obtain a WCPFC observer on a fishing trip departing
from American Samoa, the owner or operator of a fishing vessel of the
United States equipped with purse seine gear shall provide the Pacific
Islands Regional Administrator with the following information before
departure on the fishing trip, at least five days (exclusive of
weekends and Federal holidays) before the owner or operator of the
fishing vessel's intended departure: The name of the vessel; name of
the operator of the vessel; a telephone number or
[[Page 35659]]
email at which the owner or operator may be contacted; and the intended
departure date. This information shall be provided to the address
specified by the Pacific Islands Regional Administrator.
* * * * *
(f) Observer safety. The following requirements apply when a WCPFC
observer is on a fishing trip operating under the Commission's Regional
Observer Programme.
(1) The owner or operator of a fishing vessel of the United States
shall immediately report the serious illness that threatens the health
or safety of a WCPFC observer to the U.S Government contact on the list
provided by the Pacific Islands Regional Administrator at <a href="https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels">https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels</a>. In addition, the
owner or operator of the fishing vessel must:
(i) Immediately cease fishing operations;
(ii) Take all reasonable actions to care for the observer and
provide any medical treatment available and possible on board the
vessel, and where appropriate seek external medical advice;
(iii) Where directed by the observer provider, if not already
directed by the appropriate U.S. Government contact, facilitate the
disembarkation and transport of the observer to a medical facility
equipped to provide the required care, as soon as practicable; and
(iv) Cooperate fully in any official investigations into the cause
of the illness.
(2) In the event that a WCPFC observer on a fishing vessel of the
United States has been assaulted, intimidated, threatened, or harassed,
the owner or operator of the fishing vessel shall immediately notify
the U.S. Government contact and observer program contact on the list
provided by the Pacific Islands Regional Administrator at <a href="https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels">https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels</a> of the situation and
the status and location of the observer. In addition, the owner or
operator of the fishing vessel must:
(i) Immediately take action to preserve the safety of the observer
and mitigate and resolve the situation on board;
(ii) If the observer or the observer provider indicate that they
wish to be removed from the vessel, facilitate the safe disembarkation
of the observer in a manner and place, as agreed by the observer
provider and a U.S. Government contact, that facilitates access to any
needed medical treatment; and
(iii) Cooperate fully in any official investigations into the
incident.
0
3. In Sec. 300.222, add paragraphs (zz) and (aaa) to read as follows:
Sec. 300.222 Prohibitions.
* * * * *
(zz) Fail to comply with the observer safety requirements in Sec.
300.215(f).
(aaa) Fail to provide pre-trip notification per requirements in
Sec. 300.215(b).
[FR Doc. 2021-14256 Filed 7-6-21; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.