Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations 35653 

1A 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). 

* * * * * 

■ 32. Amend § 391.64 by revising the 

section heading to read as follows: 

§ 391.64 Grandfathering for certain drivers 

who participated in a vision waiver study 

program. 

* * * * * 

Issued under authority delegated in 49 CFR 

1.87. 

Meera Joshi, 

Deputy Administrator. 

[FR Doc. 2021–13888 Filed 7–6–21; 8:45 am] 

BILLING CODE 4910–EX–C 

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. 

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 OIRA_

Submission@omb.eop.gov, 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. 

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-andcentral-pacific-longline-and-purseseine-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, 


khammond on DSKJM1Z7X2PROD with RULES
35654 Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations 

2A cross-endorsed observer is an observer that is 

‘‘cross-endorsed’’ pursuant to a Memorandum of 

Cooperation between the Commission and the InterAmerican Tropical Tuna Commission (IATTC) that 

specifies a process to allow the observer to meet the 

observer requirements of both organizations. 

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/OurOrganization/Assistant-Commandantfor-Response-Policy-CG-5R/Office-ofIncident-Management-Preparedness-CG5RI/US-Coast-Guard-Office-of-Searchand-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 crossendorsed 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 crossendorsed observer, NMFS has decided 

not to implement the cross-endorsed 

observer notification requirements 

specified in the proposed rule. 

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 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations 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 pretrip 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 


khammond on DSKJM1Z7X2PROD with RULES
35656 Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations 

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 pretrip 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 pretrip 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 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations 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 


khammond on DSKJM1Z7X2PROD with RULES
35658 Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations 

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 collectionof-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 

■ 1. The authority citation for 50 CFR 

part 300, subpart O, continues to read as 

follows: 

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

■ 2. In § 300.215, revise paragraph (b) 

and add paragraph (f) to read as follows: 

§ 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 § 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 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations 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-longlineand-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-andcentral-pacific-longline-and-purseseine-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. 

■ 3. In § 300.222, add paragraphs (zz) 

and (aaa) to read as follows: 

§ 300.222 Prohibitions. 

* * * * * 

(zz) Fail to comply with the observer 

safety requirements in § 300.215(f). 

(aaa) Fail to provide pre-trip 

notification per requirements in 

§ 300.215(b). 

[FR Doc. 2021–14256 Filed 7–6–21; 8:45 am] 

BILLING CODE 3510–22–P 


khammond on DSKJM1Z7X2PROD with RULES