[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 [www.gpo.gov]
[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 www.regulations.gov (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: 
www.wcpfc.int/doc/convention-area-map.
    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 https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels 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: https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Response-Policy-CG-5R/Office-of-Incident-Management-Preparedness-CG-5RI/US-Coast-Guard-Office-of-Search-and-Rescue-CG-SAR/RCC-Numbers/.
    In addition, 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

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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 https://www.ffa.int/node/425 and https://www.wcpfc.int/node/46580 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 www.regulations.gov (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 www.reginfo.gov/public/do/PRAMain. 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 https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels. 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 https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels 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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