Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3335 

PART 948—IRISH POTATOES GROWN 

IN COLORADO 

■ 1. The authority citation for 7 CFR 

part 948 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Amend § 948.386 by revising 

paragraph (a)(2) to read as follows: 

§ 948.386 Handling Regulation. 

* * * * * 

(a) * * * 

(2) All other varieties. U.S. No. 2, or 

better grade, 2 inches minimum 

diameter or 4 ounces minimum weight. 

* * * * * 

Dated: January 13, 2010. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–1000 Filed 1–20–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 902 

50 CFR Part 300 

[Docket No. 070717350–9936–02] 

RIN 0648–AV63 

International Fisheries; Western and 

Central Pacific Fisheries for Highly 

Migratory Species; Initial 

Implementation of the Western and 

Central Pacific Fisheries Convention 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues regulations 

under authority of the Western and 

Central Pacific Fisheries Convention 

Implementation Act (WCPFC 

Implementation Act), which authorizes 

the Secretary of Commerce to 

promulgate regulations needed to carry 

out the obligations of the United States 

under the Convention on the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(Convention), including implementing 

the decisions of the Commission for the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(WCPFC). The regulations include 

requirements related to permitting, 

vessel monitoring systems, vessel 

observers, vessel markings, reporting 

and recordkeeping, at-sea 

transshipment, and boarding and 

inspection on the high seas, among 

others. NMFS has determined that this 

action is necessary for the United States 

to satisfy its international obligations 

under the Convention, to which it is a 

Contracting Party. It will have the effect 

of requiring that all relevant U.S. fishing 

vessels are operated in conformance 

with the provisions of the Convention. 

DATES: This final rule is effective 

February 22, 2010. 

ADDRESSES: Copies of supporting 

documents that were prepared for this 

final rule, including the regulatory 

impact review (RIR) and environmental 

assessment (EA), as well as the 

proposed rule, are available via the 

Federal e-Rulemaking portal, at http:// 

www.regulations.gov. Those documents, 

and the small entity compliance guide 

prepared for this final rule, are also 

available from the Regional 

Administrator, NMFS, Pacific Islands 

Regional Office, 1601 Kapiolani Blvd., 

Suite 1110, Honolulu, HI 96814–4700. 

The initial regulatory flexibility analysis 

(IRFA) and final regulatory flexibility 

analysis (FRFA) prepared for this rule 

are included in the proposed rule and 

this final rule, respectively. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

may be submitted to NMFS, Pacific 

Islands Regional Office (see contact 

information above), and by e-mail to 

David_Rostker@omb.eop.gov or fax to 

202–395–7285. 

FOR FURTHER INFORMATION CONTACT: Tom 

Graham, NMFS Pacific Islands Regional 

Office, 808–944–2219. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This final rule is also accessible at 

http://www.gpoaccess.gov/fr. 

Background 

On May 22, 2009, NMFS published a 

proposed rule in the Federal Register 

(74 FR 23965) that would add 

regulations at 50 CFR part 300, subpart 

O, in order to implement certain 

provisions of the Convention and 

decisions of the WCPFC. The proposed 

rule was open to public comment 

through June 22, 2009. 

This final rule is implemented under 

authority of the WCPFC Implementation 

Act (16 U.S.C. 6901 et seq.), which 

authorizes the Secretary of Commerce, 

in consultation with the Secretary of 

State and the Secretary of the 

Department in which the United States 

Coast Guard is operating (currently the 

Department of Homeland Security), to 

promulgate such regulations as may be 

necessary to carry out the obligations of 

the United States under the Convention, 

including the decisions of the WCPFC. 

The authority to promulgate regulations 

has been delegated to NMFS. 

The proposed rule includes additional 

background information, including 

information on the Convention and the 

WCPFC, the international obligations of 

the United States under the Convention, 

and the basis for the proposed 

regulations. 

New Requirements 

This final rule establishes the 

following requirements: 

1. Authorization To Fish 

Owners or operators of U.S. vessels 

used for commercial fishing for highly 

migratory species (HMS) on the high 

seas in the Convention Area will be 

required to obtain a new NMFS-issued 

fishing authorization, called a ‘‘WCPFC 

Area Endorsement.’’ The definition of 

fishing will include, consistent with its 

definition under the WCPFC 

Implementation Act, receiving fish from 

another fishing vessel and bunkering or 

otherwise supplying or supporting a 

vessel that engages in fishing. Thus, 

carriers that receive HMS from another 

vessel, vessels that bunker vessels used 

to fish for HMS, and vessels that engage 

in operations at sea directly in support 

of, or in preparation for, fishing or 

transshipping by other vessels will also 

be subject to this and other 

requirements of the final rule. This new 

authorization will be issued by the 

Regional Administrator of NMFS, 

Pacific Islands Region, supplemental to, 

and as an endorsement on, the permits 

issued under the authority of the High 

Seas Fishing Compliance Act of 1995 

(HSFCA; 16 U.S.C. 5501 et seq.) 

(hereafter, ‘‘high seas fishing permits;’’ 

see 50 CFR 300.13). The prerequisites to 

obtaining a WCPFC Area Endorsement 

will be: (1) Having a valid high seas 

fishing permit (or simultaneously 

applying for one); (2) submitting a 

complete application (see the next item, 

‘‘vessel information’’); and (3) paying the 

required administrative fee. The 

application form will be designed as a 

supplement to the application for a high 

seas fishing permit. The WCPFC Area 

Endorsement will become void upon 

expiration, suspension, or revocation of 

the underlying high seas fishing permit. 

The WCPFC Area Endorsement is also 

subject to suspension or revocation 

independent of the high seas fishing 

permit. Holding a WCPFC Area 

Endorsement will trigger a number of 


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3336 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

other requirements, as described in the 

elements that follow. 

2. Vessel Information 

Vessel owners and operators that 

apply for WCPFC Area Endorsements 

will be required to submit to NMFS, in 

their application forms for WCPFC Area 

Endorsements, specified information 

about the vessel and its operator (i.e., 

the master on board and in charge of the 

vessel) that is not already collected via 

the high seas fishing permit application. 

This information includes the name and 

nationality of the vessel operator (or 

operators); all communication types 

used on the vessel (e.g., single sideband 

radio, voice Inmarsat, fax Inmarsat, email Inmarsat, telex Inmarsat, or other 

type of satellite telephone), along with 

the communication service used and the 

identifying/contact number for each; the 

fishing methods used or intended to be 

used; the vessel’s fish hold capacity, 

expressed in terms of either cubic 

meters or short tons; and the vessel’s 

refrigeration and freezer capacity, 

including the types of refrigeration and 

freezer systems on board, the number of 

refrigeration and freezer units of each 

type, and the total refrigerating or 

freezing capacity of each type of system. 

In addition, a bow-to-stern side-view 

photograph of the vessel that shows the 

vessel in its current form and 

appearance and that is no older than 

five years will have to be submitted to 

NMFS. The photograph can be in either 

paper or electronic format and must 

meet certain minimum specifications in 

terms of its size and resolution and the 

legibility of the vessel markings. 

Although the international radio call 

sign assigned to a given vessel is already 

collected in high seas fishing permit 

applications, an indication of whether 

or not an international radio call sign 

has been assigned to the vessel, and if 

so, the call sign itself, will have to be 

submitted to NMFS by applicants for 

WCPFC Area Endorsements. This is 

because of the importance under the 

Convention of a vessel’s international 

radio call sign (e.g., see paragraph below 

on ‘‘vessel identification’’) and NMFS’ 

need to verify that the collected 

information is accurate. WCPFC Area 

Endorsement holders will have to 

submit to NMFS any subsequent 

changes to the submitted information 

within 15 days of the change. 

In addition, owners or operators of 

any U.S. vessel used for fishing for HMS 

in the Convention Area in areas under 

the jurisdiction of any nation other than 

the United States (i.e., vessels for which 

a WCPFC Area Endorsement will not 

necessarily be required) will be required 

to submit to NMFS information about 

the vessel, its owners and operators and 

any fishing authorizations issued by 

such other nations. Specifically, all the 

information specified in the application 

for high seas fishing permits and in the 

application for WCPFC Area 

Endorsements will be required, as well 

as, for each fishing authorization issued 

by a nation or political entity other than 

the United States, the name of the 

nation or political entity, the name of 

the issuing authority, the authorization 

type, the period of validity, the specific 

activities authorized, the species for 

which fishing is authorized, the areas in 

which fishing is authorized, and any 

unique identifiers assigned to the 

authorization. Copies of any such 

fishing authorizations will also have to 

be submitted to NMFS. This information 

will be collected via a new form 

(hereafter, ‘‘Foreign EEZ Form’’) 

designed for this purpose, and vessel 

owners/operators will be required to 

submit to NMFS any subsequent 

changes to the submitted information 

within 15 days of the change. 

The collected information referred to 

above will be incorporated by NMFS 

into a record of U.S. fishing vessels 

authorized to be used for commercial 

fishing for HMS in the Convention Area 

beyond areas of U.S. jurisdiction. In 

accordance with the Convention, NMFS 

will keep this record updated and share 

it with the WCPFC, which will combine 

it with the records of its other Members 

and Cooperating Non-Members and 

make it publicly available via its Web 

site and other means. 

3. Vessel Monitoring System 

Owners and operators of vessels with 

WCPFC Area Endorsements will be 

required to have installed, activate, 

carry and operate vessel monitoring 

system (VMS) units (also known as 

‘‘mobile transmitting units’’) that are 

type-approved by NMFS, and authorize 

the WCPFC and NMFS to receive and 

relay transmissions (also called 

‘‘position reports’’) from the VMS unit to 

the WCPFC and to NMFS. The WCPFC 

and NMFS will use the position reports 

as part of their respective VMS. 

Activation of a VMS unit will be 

required any time the unit is installed 

or reinstalled, any time the mobile 

communications service provider has 

changed, and any time directed by 

NMFS. Activation will involve 

submitting to NMFS a report 

(‘‘activation report’’) via mail, facsimile 

or e-mail with information about the 

vessel, its owner or operator, and the 

VMS unit, as well as receiving 

confirmation from NMFS that the VMS 

unit is transmitting position reports 

properly. The VMS unit will have to be 

turned on and operating (i.e., 

transmitting automated position reports) 

at all times while the vessel is at sea, 

both inside and outside the Convention 

Area. The VMS unit may be turned off 

while the vessel is in port, but only if 

the vessel operator notifies NMFS via 

mail, facsimile or e-mail prior to such 

shut-down. In such cases, NMFS must 

also be notified when the VMS unit is 

subsequently turned back on (these two 

types of notifications are called ‘‘on/off 

reports’’), and the vessel operator must 

receive confirmation from NMFS that 

the VMS unit is functioning properly 

prior to leaving port. In the case of 

failure of the VMS unit while at sea, the 

vessel operator will be required to 

contact NMFS and follow the 

instructions provided by NMFS, which 

could include, among other actions: 

Submitting position reports at specified 

intervals by other means, ceasing 

fishing, stowing fishing gear, and/or 

returning to port; and repairing or 

replacing the VMS unit and ensuring it 

is operable before starting the next trip. 

To facilitate communication with 

management and enforcement 

authorities about the functioning of the 

VMS unit and for other purposes, 

operators of vessels with WCPFC Area 

Endorsements will be required to carry 

on board and continuously monitor 

while at sea a two-way communication 

device capable of real-time 

communication with NMFS in 

Honolulu. For the purpose of submitting 

position reports that might be required 

in the case of VMS unit failure, vessel 

operators must also carry on board a 

communication device capable of 

transmitting communications by 

telephone, facsimile, e-mail, or radio to 

the WCPFC in Pohnpei, Micronesia, 

while the vessel is on the high seas in 

the Convention Area. 

The vessel owner and operator will be 

responsible for all costs associated with 

the purchase, installation and 

maintenance of the VMS unit, and for 

all charges levied by the mobile 

communications service provider as 

necessary to ensure the transmission of 

automatic position reports to NMFS. 

However, if the VMS unit is being 

carried and operated in compliance 

with the requirements in 50 CFR parts 

300, 660, or 665 relating to the 

installation, carrying, and operation of 

VMS units, the vessel owner and 

operator will not be responsible for 

costs that are the responsibility of 

NMFS under those regulations. In 

addition, the vessel owner and operator 

will not be responsible for the costs of 

transmitting the automatic position 

reports to the WCPFC. 


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NMFS publishes separately typeapproval lists of VMS units. The current 

type-approval lists can be obtained from 

the NOAA Office of Law Enforcement, 

8484 Georgia Avenue, Suite 415, Silver 

Spring, MD 20910; by telephone at 888– 

210–9288; or by fax at 301–427–0049. 

This final rule is worded so as to 

avoid duplication with other VMS 

requirements, such as those established 

under the Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA; 16 U.S.C. 1801 et seq.) and the 

South Pacific Tuna Act of 1988 (SPTA; 

16 U.S.C. 973–973r). Compliance with 

the existing VMS requirements at 50 

CFR parts 300, 660, and 665 will satisfy 

this new requirement, provided that the 

VMS unit is type-approved by NMFS 

specifically for fisheries governed under 

the WCPFC Implementation Act, the 

VMS unit is operated continuously at all 

times while the vessel is at sea, the 

vessel owner and operator have 

authorized the WCPFC and NMFS to 

receive and relay transmissions from the 

VMS unit, and the requirements in case 

of VMS unit failure are followed. 

4. Vessel Observer Program 

The operator of a vessel with a 

WCPFC Area Endorsement will be 

required to accept on board and 

accommodate observers deployed as 

part of the WCPFC ‘‘Regional Observer 

Programme’’ (WCPFC ROP) on fishing 

trips that are partially or fully in the 

Convention Area. Such observers 

include persons designated by the 

WCPFC Secretariat, by the United States 

or by other Members of the WCPFC. 

Persons will be designated as WCPFC 

observers by the United States or other 

WCPFC Members only if the national or 

sub-regional observer program that 

deploys such observers has been 

authorized by the WCPFC to be a part 

of the WCPFC ROP. Once an observer 

program of NMFS is determined by the 

WCPFC to meet specified minimum 

standards and incorporated into the 

WCPFC ROP, relevant data collected in 

the NMFS program will be submitted to 

the WCPFC and maintained and used by 

the WCPFC as data in its larger WCPFC 

ROP. 

The preamble to the proposed rule 

inaccurately stated that the observer 

requirements would also apply to 

vessels used in areas under the 

jurisdiction of another Member of the 

WCPFC. This final rule clarifies that the 

observer requirements apply only to 

vessels that have, or are required to 

have, WCPFC Area Endorsements. 

It is anticipated that the NMFS 

observer program operating out of 

Honolulu, Hawaii, and Pago Pago, 

American Samoa, will be among the 

first national observer programs to be 

authorized to be part of the WCPFC 

ROP. The NMFS observer program 

currently has interim authorization until 

July 1, 2012, and full authorization is 

anticipated after a successful audit of 

the program. Accordingly, NMFS 

expects there to be little, if any, change 

in the placement of observers on vessels 

in the longline fleets based in Hawaii 

and American Samoa. The WCPFC 

Secretariat may place an occasional 

observer as part of an auditing process 

to ensure that national and sub-regional 

observer programs are operating up to 

WCPFC standards. 

It is also anticipated that U.S. purse 

seine vessels operating under the SPTA 

will continue to carry observers from 

the Pacific Islands Forum Fisheries 

Agency (FFA) observer program (a subregional observer program). If the FFA is 

unable to provide observers to meet 

increased coverage levels mandated by 

the WCPFC, those vessels may make 

other arrangements to obtain WCPFCapproved observers. 

The responsibilities of vessel 

operators and crew members with 

respect to observers will include 

allowing and assisting observers to do 

the following: embark and disembark at 

agreed times and places; have access to 

and use of all facilities and equipment 

on board that are necessary to conduct 

observer duties; remove samples; and 

carry out all duties safely. The vessel 

operator also will be responsible for 

providing observers, while on board the 

vessel, with food, accommodation and 

medical facilities of a reasonable 

standard equivalent to those normally 

available to an officer on board the 

vessel. In the case of longline vessels in 

the Hawaii and American Samoa fleets, 

however, costs incurred for providing 

subsistence for NMFS observers will be 

eligible for reimbursement, as currently 

provided at 50 CFR Part 665. 

5. Vessel Identification 

Vessels with WCPFC Area 

Endorsements will be required to be 

marked in accordance with the 

Convention’s requirements, which are 

based on the FAO Standard 

Specifications for the Marking and 

Identification of Fishing Vessels. 

Specifically, if assigned an international 

radio call sign (IRCS), the port and 

starboard sides of a vessel’s hull or 

superstructure, as well as a deck, will 

have to be marked with the IRCS; if not 

assigned an IRCS, they will have to be 

marked with the vessel’s official number 

(i.e., USCG documentation number or 

state or tribal registration number), 

preceded by the characters ‘‘USA’’ and a 

hyphen. In both cases, the specified 

marking will be the only allowable 

marking on the hull or superstructure 

apart from the vessel’s name and hailing 

port. The markings will have to be 

placed so that they are clear, distinct, 

uncovered, and unobstructed. Any 

boats, skiffs, or other watercraft that are 

carried on board the vessel also will 

have to be marked with the same 

identifier as the fishing vessel. For some 

affected vessels, this marking 

requirement will conflict with other 

existing vessel marking requirements, 

such as those at 50 CFR 300.14 (under 

the HSFCA; applicable to vessels used 

for fishing on the high seas), 50 CFR 

300.173 (under the legislation 

implementing the U.S.-Canada Albacore 

Treaty; applicable to vessels used for 

fishing under that treaty), 50 CFR 

660.704 (under the MSA; applicable to 

vessels in West Coast HMS fisheries), 

and 50 CFR 665.16 (under the MSA; 

applicable to vessels in western Pacific 

fisheries). Accordingly, with respect to 

the vessel identification requirements at 

50 CFR 300.14, this final rule will 

slightly modify those requirements to 

make them consistent with this new 

requirement. With respect to the vessel 

identification requirements at 50 CFR 

665.16, NMFS has issued a proposed 

rule (74 FR 34707; July 17, 2009) to 

revise those requirements such that they 

do not conflict with the requirements of 

this final rule. NMFS anticipates issuing 

the final rule for that action nearly 

concurrently with this final rule, in 

which case there will be no conflict. 

With respect to the vessel identification 

requirements at 50 CFR 300.173 and 

660.704, no regulatory action to revise 

those requirements has been undertaken 

to date, so the vessel identification 

requirements in this final rule are 

written such that they will not apply to 

fishing vessels subject to the 

requirements of either 50 CFR 300.173 

or 660.704 until the conflicts have been 

reconciled and a notice to that effect has 

been published in the Federal Register. 

6. Transshipment Restrictions 

Offloading fish from a U.S. purse 

seine vessel or using a U.S. fishing 

vessel to receive fish from a purse seine 

vessel at sea in the Convention Area 

will be prohibited. Transshipping at sea 

is already regulated for U.S. purse seine 

vessels licensed under the SPTA. 

7. Reporting and Recordkeeping 

The owner or operator of any U.S. 

vessel used for commercial fishing for 

HMS anywhere in the Pacific Ocean 

will be required to maintain and submit 

to NMFS information on fishing effort 

and catch. The final rule was developed 

to avoid duplication with other effort 


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3338 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

and catch reporting requirements, 

particularly those established under the 

MSA, the HSFCA, the Tuna 

Conventions Act of 1950 (16 U.S.C. 

951–961 et seq.), the SPTA, and the 

implementing legislation for the U.S.- 

Canada Albacore Treaty, as well as 

relevant State reporting requirements. 

Specifically, compliance with other 

existing reporting requirements will 

satisfy the new reporting requirement 

established in this final rule. The main 

effect of these new reporting 

requirements is to collect fishing effort 

and catch information under the 

authority of the WCPFC Implementation 

Act, which will enable NMFS to meet 

the reporting requirements of the 

WCPFC in accordance with the 

Convention and the decisions of the 

WCPFC. Confidentiality of information 

will be protected and handled by NOAA 

as required under U.S. laws, including 

the WCPFC Implementation Act and the 

regulations established in this final rule 

(see element 10 below). Once the 

information is submitted by NOAA to 

the WCPFC, it will be handled in 

accordance with policies and 

procedures adopted by the WCPFC. 

8. Compliance With the Laws of Other 

Nations 

A vessel with a WCPFC Area 

Endorsement will be prohibited from 

being used for fishing in areas under the 

jurisdiction of another nation unless it 

holds any license, permit or 

authorization that may be required by 

such nation to do so. When a vessel 

with a WCPFC Area Endorsement 

operates in the Convention Area in areas 

under the jurisdiction of a Member of 

the WCPFC other than the United 

States, it will have to be operated in 

compliance with the laws of that 

Member. 

Additionally, the owner and operator 

of any U.S. fishing vessel used in the 

Convention Area in an area under the 

jurisdiction of another Member of the 

WCPFC, if used for fishing for, retaining 

on board or landing HMS, will be 

required to comply with the relevant 

laws of that Member, including any 

laws related to the use of VMS units. 

It will be the responsibility of vessel 

owners and operators to ascertain the 

applicable laws and requirements of 

WCPFC members. 

9. Facilitation of Enforcement and 

Inspection 

The operator and crew of a vessel 

with a WCPFC Area Endorsement, when 

in the Convention Area, will be subject 

to the following requirements: 

• Carry on board any fishing 

authorizations issued by another nation 

or political entity, or copies thereof, and 

make them available to specified 

authorities, depending on the area of 

jurisdiction the vessel is in; 

• Continuously monitor the 

international safety and calling radio 

frequency (156.8 MHz; Channel 16, 

VHF–FM) and, if equipped to do so, the 

international distress and calling radio 

frequency (2.182 MHz); 

• Carry on board a copy of the 

International Code of Signals; and 

• When engaged in transshipment, 

allow and assist transshipment monitors 

authorized by the WCPFC (if on the high 

seas) or other Members of the WCPFC (if 

within their areas of jurisdiction) to 

inspect the vessel and gather 

information and samples. 

In addition, the operator of any U.S. 

fishing vessel that is used for 

commercial fishing for HMS, when 

present in the Convention Area in an 

area in which it is not authorized to fish 

(e.g., on the high seas without a valid 

WCPFC Area Endorsement or in an area 

under the jurisdiction of another nation 

without an authorization from that 

nation to fish in the area), will be 

required to stow all fishing gear and 

equipment so such materials are not 

readily available for fishing. 

Further, the operator of any U.S. 

fishing vessel (regardless of the species 

for which it is used to fish), when on the 

high seas in the Convention Area, will 

be required to accept and assist 

boarding and inspection by authorized 

inspectors of other Contracting Parties 

to the Convention and of fishing entities 

that have agreed to be bound by the 

regime established by the Convention, 

provided that such boarding and 

inspection is undertaken in 

conformance with the WCPFC’s adopted 

procedures. At present, Chinese Taipei 

(Taiwan) is the only fishing entity that 

has agreed to be bound by the regime 

established by the Convention. 

10. Confidentiality of Information 

As mandated by the WCPFC 

Implementation Act, the final rule 

includes procedures designed to 

preserve the confidentiality of 

information submitted in compliance 

with the WCPFC Implementation Act 

and its implementing regulations. In 

accordance with the Convention, the 

procedures allow for the disclosure of 

confidential information to the WCPFC. 

Once such information is held by the 

WCPFC, access to the information will 

be governed by the policies and 

procedures adopted by the WCPFC. 

Comment and Responses 

Public comments on the proposed 

rule, organized by subject, are 

summarized below, with responses from 

NMFS. 

Authorization to Fish and Vessel 

Information 

Comment 1: NMFS proposes to charge 

$25 (or $5 per year) for the WCPFC Area 

Endorsement. Although this is a small 

amount relative to vessel revenues, 

NMFS does not provide adequate 

reasoning of why or how this amount 

will recoup administrative costs, 

resulting in the perception of NMFS 

attempting to ‘‘nickel and dime’’ U.S. 

fishing vessels. NMFS should not charge 

any fees for WCPFC Area Endorsements, 

but if NMFS insists, then it should 

describe in the final rule or EA how the 

total amount of monies received from 

area endorsement applications would 

offset administrative costs. 

Response: NMFS does not agree that 

an application fee should not be charged 

for WCPFC Area Endorsements. As 

stated in footnote 63 of the EA, the cost 

estimates for the application fee are 

based on the administrative cost burden 

incurred by NMFS, which is derived 

from agency practice and experience. 

The fee has been calculated in 

accordance with the NOAA Finance 

Handbook to recover the administrative 

costs of administering the permit 

program for WCPFC Area 

Endorsements, as authorized under 

section 506 of the WCPFC 

Implementation Act. 

Comment 2: The new information that 

will be solicited from vessel owners, 

including nationality of vessel master, 

vessel communication types, type of 

fishing or method, color photograph of 

the vessel, and carrying capacity, 

including freezer type, capacity and 

number, and fish hold capacity, could 

generate confusion regarding the units 

of measurement related to capacity, as 

well as confusion on the level of detail 

of the required information. NMFS 

should produce a comprehensive 

compliance guide for vessel owners to 

follow. 

Response: Clear instructions on the 

level of detail required, as well as the 

measurement units, will be included in 

the forms used to collect the required 

information. The requirements are also 

explained in the small entity 

compliance guide that has been 

prepared for this final rule, available at: 

http://www.fpir.noaa.gov/IFD/ 

ifd_documents_data.html. 

Comment 3: In 50 CFR 300.212(g) and 

300.213(a) the proposed regulations call 

for any changes to vessel information to 

be reported to the NMFS Pacific Islands 

Regional Administrator within 15 days 

of the change. This requirement would 


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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3339 

be burdensome; 30 days would be much 

more manageable. 

Response: The proposed 15-day 

requirement is necessary to satisfy the 

provisions of the Convention and 

decisions of the WCPFC with respect to 

the obligations of the United States to 

notify the WCPFC of changes to 

information associated with U.S.-flagged 

vessels authorized to fish in the 

Convention Area. Furthermore, the 

proposed 15-day requirement is 

consistent with the existing, related, 15- 

day requirement for changes to 

application information for permits 

issued under the HSFCA (50 CFR 

300.13(g)). The requirement at proposed 

section 300.212(g) relates to application 

information for a WCPFC Area 

Endorsement, which would be issued 

supplemental to, and as an endorsement 

on, a permit issued under the HSFCA. 

Vessel Monitoring System 

Comment 4: The proposed rule 

includes a requirement in 

§ 300.219(c)(3)(iii) that prior to leaving 

port, a vessel owner and operator must 

‘‘receive verbal or written confirmation 

from NMFS that proper transmissions 

are being received from the VMS unit.’’ 

The lack of availability of staff in the 

NOAA Office of Law Enforcement, 

Pacific Islands Division (‘‘OLE–PID’’), 

may cause an unreasonable loss of 

fishing time for fishing vessels, which 

do not operate on a 9 a.m. to 5 p.m. 

basis and operate in various time zones. 

There should be a system that allows 

confirmation of VMS unit operation 

outside the regular office hours of OLE– 

PID. One suggestion is to allow a vessel 

to contact, and receive confirmation 

from, a representative of the VMS unit 

manufacturer, after which the vessel 

could contact and receive confirmation 

from OLE–PID once it opens for 

business. 

Response: The referenced requirement 

applies in the case that the vessel owner 

and operator have chosen to shut down 

the VMS unit while at port or otherwise 

not at sea. NMFS recognizes that the 

office hours of OLE–PID are somewhat 

constraining, but notes that the owner 

and operator of a fishing vessel need not 

wait until immediately prior to the port 

departure time to turn on the VMS unit 

and submit the on/off report to NMFS. 

In order to provide a few additional 

hours each day for these communication 

purposes, NMFS has made a revision to 

the final rule such that vessel owners 

and operators may submit the VMS unit 

on/off reports to, and receive 

confirmations from, either OLE–PID or 

the NOAA Office of Law Enforcement’s 

VMS Helpdesk. The contact information 

and business hours for the latter are: 

telephone: 888–219–9228; e-mail: 

ole.helpdesk@noaa.gov; 7 a.m. to 11 

p.m., Eastern Time. 

Comment 5: Under the proposed rule, 

if a VMS unit fails while the vessel is 

at sea, the vessel owner, operator, or 

designee must contact OLE–PID by 

telephone, facsimile, or e-mail at the 

earliest opportunity during OLE–PID’s 

business hours, identify the caller and 

vessel, and follow the instructions given 

by OLE–PID, which could include 

ceasing fishing, stowing fishing gear, 

returning to port, and/or submitting 

periodic position reports at specified 

intervals by other means. We expect that 

OLE–PID will be reasonable in the 

instructions it gives in these cases. 

Response: In determining what 

instructions to give to the operator of a 

fishing vessel whose VMS unit has 

failed while at sea, OLE–PID would take 

into account the specific circumstances 

of the case, and determine the 

appropriate course of action consistent 

with this rule. 

Comment 6: Given that albacore troll 

and baitboats are small, have little 

problems with bycatch, enforcement 

issues, or gear conflicts, land nearly all 

their fish on the U.S. west coast and 

document their catch in logbooks, and 

there are few marine protected areas in 

offshore regions where U.S. albacore 

troll vessels operate, how effective and 

useful will the required VMS data be? 

Response: The United States is 

obligated, as a Contracting Party to the 

Convention, to implement Article 24 of 

the Convention, which calls for each 

WCPFC member to require that its 

fishing vessels used to fish for highly 

migratory fish stocks on the high seas in 

the Convention Area use near real-time 

satellite position-fixing transmitters 

while in such areas. In addition, NMFS 

believes that requiring U.S. albacore 

troll vessels to carry VMS units would 

provide important information that will 

aid in scientific and compliance-related 

purposes. 

Comment 7: Why is it proposed that 

the VMS units have to be turned on 365 

days per year? A declaration of 

departure and a check to see if the VMS 

unit is on should serve the purpose. 

Response: Under the proposed rule, as 

well as this final rule, the VMS unit can 

be shut down while the fishing vessel is 

at port or otherwise not at sea, provided 

that NMFS is notified both in advance 

of the shut-down and upon turning the 

VMS unit back on, and that prior to 

subsequently leaving port, the vessel 

owner and operator receive verbal or 

written confirmation from NMFS that 

proper transmissions are being received 

from the VMS unit. 

Comment 8: If the United States is 

requiring VMS units under the 

Convention then NOAA should pay for 

installation as in other fisheries. The 

U.S. albacore fleet is in economic 

distress and is an important component 

of the coastal rural economy; any new 

fees at this time would be detrimental 

to the family-owned U.S. albacore fleet 

and community at this time. 

Response: NMFS is indeed requiring 

that VMS units be carried in order to 

implement the provisions of the 

Convention, and NMFS recognizes that 

the proposed VMS requirements would 

bring new costs to businesses that 

operate HMS fishing vessels in the 

Convention Area. NMFS does not agree 

that the U.S. Government is responsible 

for covering the cost of coming into 

compliance with this rule, but notes that 

it has conducted an analysis of the 

impact of this rule on small entities, in 

accordance with the Regulatory 

Flexibility Act (see IRFA and FRFA). In 

addition, fishermen may be eligible for 

full or partial reimbursement for the 

required purchase costs of authorized 

VMS units, to the extent appropriations 

allow. Questions concerning 

reimbursement eligibility can be 

directed to the NOAA Office of Law 

Enforcement VMS Support Center at 

888–219–9228, and further information 

is available on the Web site of the 

Pacific States Marine Fisheries 

Commission: http://www.psmfc.org/ 

Vessel_Monitoring_System. 

Comment 9: According to the 

proposed rule and EA, 73 vessels would 

have to buy, install, and maintain VMS 

units as well as pay for VMS 

transmission costs. This would cost 

approximately up to $1,775 [per vessel] 

per year or $7,100 over the course of 

four years, which is a VMS unit’s 

general lifespan. It does not make sense 

to break out the VMS unit cost by year, 

as the VMS unit itself costs 

approximately $4,000. The EA does not 

describe whether NMFS has pursued 

government funding to cover these costs 

for the 73 affected vessels. NMFS 

should find government funding to 

make this requirement equitable 

amongst fishery participants—the 

Western Pacific Regional Fishery 

Management Council strongly believes 

that NMFS should pay for the VMS 

costs for the two longline vessels 

operating out of the Commonwealth of 

the Northern Mariana Islands (CNMI), as 

well as for the albacore troll fleet. 

Furthermore, the proposed rule would 

require albacore trolling vessels to 

continue to transmit their VMS 

positions while fishing in the eastern 

Pacific Ocean (EPO). This seems 

particularly onerous and costly for this 


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fleet, especially since the proposed rule 

is in response to WCPFC measures. The 

proposed rule would also require that 

vessel operators provide NMFS with a 

notice when they power down in port 

and shut off power supply to their VMS 

unit. Vessel operators would also have 

to inform NMFS that they have powered 

back on and that they are going on a 

fishing trip. As this is not current 

practice, NMFS will need to develop a 

detailed outreach plan to inform fishery 

participants. 

Response: With respect to breaking 

out the VMS unit costs by year, NMFS 

annualized the estimated cost of 

purchasing and installing a VMS unit in 

order to express expected compliance 

costs in terms that could be compared 

with, and added to, the compliance 

costs of other aspects of the proposed 

requirements—that is, in annual terms 

(the annualized cost of a VMS unit that 

costs $4,000 to purchase and install and 

that has a lifespan of four years would 

be about $1,000). 

With respect to who should pay the 

costs of the VMS-related requirements, 

NMFS does not agree that NMFS or the 

U.S. Government is responsible for 

covering the costs, but notes that vessel 

owners might be eligible for 

reimbursement for the cost of VMS units 

under a program administered by the 

NOAA Office of Law Enforcement (for 

more information, see the response to 

comment 8, above). 

With respect to the costs and burden 

of having to transmit position reports 

via VMS while a vessel is fishing in the 

EPO, outside the Convention Area, 

NMFS considered alternatives that 

would not require such reporting (see 

the IRFA, FRFA, EA, and RIR, 

particularly Alternatives B and C in the 

latter two). Position reports will cost 

about $1.50 per day, so the annual VMSrelated compliance costs of Alternative 

B, which would require position reports 

to be transmitted only while the vessel 

is on the high seas in the Convention 

Area, would be about $105–$285 less 

than under the proposed rule for 

albacore troll vessels, depending on 

where they fish. However, allowing the 

VMS unit to be turned on and off 

depending on where at sea the vessel is 

would make it more difficult to ensure 

that position reports are transmitted 

while in the Convention Area, which 

would reduce the effectiveness of the 

VMS. For that reason, NMFS believes 

that the benefits of the preferred 

alternative of requiring position reports 

everywhere at sea outweigh the burden. 

With respect to informing fishery 

participants about these new VMSrelated requirements, NMFS does not 

intend to prepare an ‘‘outreach plan,’’ 

but it has prepared a small entity 

compliance guide, available at http:// 

www.fpir.noaa.gov/IFD/ 

ifd_documents_data.html, for this 

purpose, and NMFS will use various 

means to reach out to fishery 

participants to ensure they are aware of 

the new requirements. 

Vessel Observer Program 

Comment 10: The Western Pacific 

Regional Fishery Management Council 

strongly believes that NMFS should pay 

for the observer costs for the two 

longline vessels operating out of the 

CNMI, as well as for the albacore troll 

fleet. 

Response: NMFS has analyzed the 

costs of accommodating observers in the 

IRFA and has assessed its impacts on 

small entities. NMFS believes that these 

costs are reasonable and properly 

should be borne by vessels that accept 

the benefits of commercial fishing for 

HMS in the Convention Area. 

Comment 11: The EA is unclear on 

why alternatives were not identified or 

considered for implementation of the 

WCPFC observer program. The VMS 

category considered alternatives that 

would trigger VMS requirements if 

certain temporal and spatial 

characteristics were met. However, 

similar alternatives were [not] 

considered for the vessel observer 

program category. The EA does not 

provide any explanation on why NMFS 

has no discretion in implementing the 

WCPFC observer program. The observer 

requirements could be especially 

onerous for U.S. albacore fishermen 

who fish on relatively small vessels, and 

no reason is provided for potentially 

requiring them to carry observers when 

they may not be fishing in the 

Convention Area. NMFS should include 

and analyze this alternative that would 

avoid this situation in the Final EA. 

Response: The observer requirements 

in the rule implement the specific 

requirements of the WCPFC ROP set 

forth in Article 28 of the Convention. 

The requirements will apply to any U.S. 

vessel used for commercial fishing for 

HMS on the high seas in the Convention 

Area (i.e., a vessel that has, or that is 

required to have, a WCPFC Area 

Endorsement). As explained below, 

NMFS has clarified in this final rule that 

fishing vessels with WCPFC Area 

Endorsements will be required to accept 

and accommodate observers only on 

trips that take place partially or fully in 

the Convention Area. The compliance 

costs for the observer requirements have 

been estimated accordingly, as 

described in the RIR and IRFA and 

summarized in the EA. 

Chapters 1 and 2 of the EA set forth 

the discretionary provisions of the rule 

and the alternatives analyzed in the EA, 

while Appendix I of the EA describes 

the non-discretionary provisions of the 

rule. NMFS characterized the 

discretionary provisions as those for 

which reasonable and feasible 

alternatives could be considered and 

analyzed. As discussed in more detail in 

the response to Comment 27, below, the 

EA discussed the environmental 

impacts that could be caused by the 

non-discretionary provisions of the rule 

as part of the cumulative impacts 

analysis. The purpose of the rule is for 

NMFS to develop and promulgate 

domestic fishery regulations to 

implement the provisions of the 

Convention that are ready for 

implementation, while the need for the 

rule is to satisfy the obligations of the 

United States under the Convention. 

Thus, alternatives that would impose 

requirements on vessel owners and 

operators that would go beyond the 

requirements specified under the 

Convention would be outside the scope 

of this rule. Correspondingly, 

alternatives that would impose 

requirements on vessel owners and 

operators that would be less restrictive 

than the requirements specified under 

the Convention would not meet the 

purpose of and need for the rule. NMFS 

did consider alternatives for the VMS 

requirements that would apply on 

broader temporal and spatial scales than 

the VMS requirements specified in the 

Convention. However, these alternatives 

were considered primarily in terms of 

their capability to enhance the 

enforcement of and compliance with the 

VMS requirements specified in the 

Convention, concerns not applicable to 

the observer requirements. Alternatives 

to the observer requirements set forth in 

the rule, such as an alternative that 

would require vessels with WCPFC Area 

Endorsements to carry observers when 

operating outside of the Convention 

Area, or an alternative that would allow 

particular vessels to operate without 

observers, would either exceed the 

scope of the rule or not meet the 

purpose of and need for the rule. 

Comment 12: With respect to the 

proposed vessel observer requirements, 

a clear list of questions that observers 

may appropriately ask should be 

developed and provided to vessel 

management, vessel operators, and 

observers. The proposed rule spells out 

the responsibilities of vessel operators 

and crew with respect to 

accommodating observers, but little 

information is provided on the expected 


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behavior and responsibilities of 

observers. 

Response: This final rule does not 

establish any new reporting 

requirements with respect to WCPFC 

observers. 

With regard to the expected behavior 

and responsibilities of observers, under 

the WCPFC ROP, WCPFC observers 

must be trained to specified minimum 

standards, and they are obligated to 

behave and perform in conformance 

with principles and guidelines specified 

in the WCPFC Conservation and 

Management Measure for the Regional 

Observer Programme (Conservation and 

Management Measure 2007–01, 

available at: http://www.wcpfc.int/ 

conservation-and-managementmeasures). In the case that a WCPFC 

observer is deployed as part of a NMFS 

observer program, NMFS would work to 

ensure that the observer behaves and 

performs in conformance with those 

principles and guidelines. If the WCPFC 

observer is deployed under some other 

program, such as the FFA observer 

program, NMFS would work with the 

personnel in that program, as well as in 

the WCPFC, to ensure, to the extent 

possible, that that program’s observers 

behave and perform in conformance 

with the principles and guidelines 

established in the WCPFC ROP. 

Comment 13: In order to provide 

timely feedback to vessel operators, 

which would improve their observer 

responsibilities, observers should be 

debriefed at the end of each fishing trip, 

such as by NMFS staff in the presence 

of the vessel captain. 

Response: NMFS agrees that 

debriefings are important and should be 

an element of the WCPFC ROP. 

However, WCPFC observers are not 

necessarily deployed by NMFS or 

otherwise in the employ of the U.S. 

Government, so NMFS is not able to 

mandate that observer debriefings occur 

or that vessel captains be allowed to 

attend such debriefings. Instead, such 

provisions would have to be 

incorporated into the WCPFC ROP, the 

applicable provisions of which NMFS 

would then implement as needed. As 

part of U.S. delegations to the WCPFC, 

NMFS will keep this comment under 

consideration as the WCPFC further 

develops the WCPFC ROP. 

Comment 14: The cost of carrying an 

observer is estimated in the IRFA to cost 

$20 per day, which, at a 5% coverage 

rate, would total $350 per trip, 

depending on the length of the trip. But 

because albacore vessels operating west 

of 150° W. long. would be at sea for 25 

to 100 days, the cost would be more like 

$400 to $2,000 per trip. These costs 

should be clarified and a cap of $350 

per trip should be considered. 

Response: It is stated in the IRFA that 

at a daily cost of $20, a 5% coverage 

rate, and 170 to 350 days at sea per year, 

the annual (not per-trip) cost would be 

$170 to $350. This is an estimate of 

average annual costs; the cost would be 

greater in a year in which a vessel was 

required to carry an observer on more 

than 5% of its sea-days, and the cost 

would be less in a year in which the 

vessel was required to carry an observer 

on less than 5% of its sea-days. The 

estimated cost of an observed trip 100 

days long would indeed be about 

$2,000, as indicated by the commenter. 

NMFS believes it to be appropriate that 

vessel owners and operators bear the 

entirety of these costs and that a cap is 

not appropriate. 

Comment 15: Most albacore vessels 

are small compared to longline and 

purse seine vessels; a typical vessel 

operating west of 150° W. long. would 

be 50–100 feet in length and have a 

crew of 2–3 persons; most of the vessels 

in the 50–65-foot range have limited 

space for observers, especially on 

extended trips. 

Response: NMFS recognizes that some 

fishing vessels have limited space and 

small crew sizes. If NMFS determines 

that deploying an observer on a 

particular vessel would compromise the 

safety of the observer or the vessel crew, 

it would not deploy the observer. 

Comment 16: Considering that 

albacore troll vessels may be at sea for 

25 to 100 days at a time and operate in 

a fishery with virtually no 

environmental or regulatory impacts, 

how practical is it to carry an observer? 

Response: One of the purposes of 

deploying observers under the WCPFC 

ROP is to gather information that can be 

used to characterize fishing activities 

and their impacts on living marine 

resources. As more information is 

gathered and better characterizations are 

developed in a given fishery, such as the 

albacore troll fishery, NMFS expects 

that the coverage rate in that fishery 

would be adjusted by the WCPFC 

accordingly. 

Comment 17: Albacore troll vessels 

operate at least 7–10 days away from 

any harbor and travel at only 7–9 knots; 

aborting a trip because of a health or 

other problem with an observer would 

be problematic; who would reimburse 

the vessel for potentially two to three 

weeks of lost time? 

Response: NMFS recognizes that there 

may be instances in which the presence 

of an observer on board a fishing vessel 

could influence the course of a fishing 

trip. NMFS, however, believes that these 

occurrences will be rare. Accordingly, 

the final rule does not include any 

provisions for reimbursing or otherwise 

compensating vessel owners or 

operators for any losses incurred in such 

instances. 

Vessel Identification 

Comment 18: The proposed vessel 

identification requirements, which in 

the case of a vessel that has not been 

assigned an international radio call sign 

require that the vessel’s Federal, State or 

other documentation number be 

preceded by the letters ‘‘USA’’, might be 

a problem for some smaller albacore 

vessels because of space, particularly 

given that under the U.S.-Canada 

Albacore Treaty U.S. vessels are already 

required to put a ‘‘U’’ after the vessel’s 

U.S. Coast Guard Documentation 

number or state registration number. 

Response: The rule specifies 

minimum heights of the letters and 

numbers to be marked on the vessel that 

are proportional to the length of the 

vessel. The rule also specifies minimum 

widths of strokes, minimum hyphen 

lengths, and minimum sizes of the 

spaces between letters and numbers, all 

of which are expressed in terms of the 

letter height. In other words, the size 

specifications for the vessel markings 

explicitly take boat length into 

consideration. 

It should also be noted that the vessel 

identification requirements under the 

U.S.-Canada Albacore Treaty (at 50 CFR 

300.173) conflict with the vessel 

identification requirements established 

in this rule, and because of that, the 

requirements in this rule will become 

effective only when the requirements at 

50 CFR 300.173 have been revised so as 

to remove the conflict. 

Transshipment Restrictions 

Comment 19: The proposed rule’s 

prohibition on purse seine 

transshipments at sea is appropriate. 

However, NMFS should provide 

information on the impact of the 

proposed rule’s prohibition on purse 

seine transshipments at sea and also 

describe if the U.S. fleet has historically 

transshipped, including the locations of 

such transshipments, in past years. 

Response: As described in the IRFA 

and RIR, U.S. purse seine vessels are 

already subject to substantial 

restrictions on at-sea transshipments 

under the SPTA, and U.S. purse seine 

vessels consequently do not, in practice, 

transship at sea. Accordingly, this 

requirement is not expected to bring a 

new compliance burden on affected 

fishermen or otherwise cause any 

impacts on purse seine transshipments 

at sea. 


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Reporting and Recordkeeping 

Comment 20: The proposed rule 

would require any U.S. commercial 

fishing vessel fishing for HMS anywhere 

in the Pacific Ocean to submit catch and 

effort information to NMFS. The 

preamble to the proposed rule indicates 

that these reporting requirements are 

already met by reporting requirements 

established under the MSA, the HSFCA, 

the Tuna Conventions Act of 1950, the 

SPTA, the implementing legislation for 

the U.S.-Canada Albacore Treaty, as 

well as relevant State reporting 

requirements. The proposed rule and 

EA do not include detailed information 

to verify NMFS’ indication that this is 

applicable to 5,000 vessels, nor do they 

discuss in detail how NMFS is currently 

obtaining this important information. 

Response: The proposed rule and EA 

include what NMFS believes to be 

sufficient detail to explain the proposed 

requirements and their basis and to 

assess their impacts. The rule at 50 CFR 

300.218 details the specific regulations 

that contain the applicable catch and 

effort reporting requirements. 

Compliance With the Laws of Other 

Nations 

Comment 21: The proposed rule’s 

requirement for owners and operators to 

comply with laws of other nations is 

appropriate. However, the EA does not 

provide any current or historical 

information on the number of U.S. 

vessels that fish in the exclusive 

economic zones of other member 

nations. To get a better understanding 

on the issue, the Final EA should 

include this information. 

Response: Annex III, Article 2 of the 

Convention sets forth the specific 

provisions for complying with national 

laws that are being implemented in this 

rule. Providing current or historical 

information on the number of U.S. 

vessels that fish in the exclusive 

economic zones of other WCPFC 

members in the EA would not provide 

information relevant to the analysis or 

affect the proposed action. See the IRFA 

and FRFA for estimates of the numbers 

of vessels and small entities to which 

this requirement will apply. 

Facilitation of Enforcement and 

Inspection 

Comment 22: The proposed rule states 

that the operator of any U.S. fishing 

vessel must accept and assist boarding 

and inspection by contracting parties of 

the WCPFC. As there are U.S. vessels 

that have Pacific Remote Island Areas 

bottomfish, lobster, and troll permits, 

NMFS should provide information to 

these vessel operators so that they are 

aware of potential boarding and 

inspection by non U.S. parties. The final 

rule and Final EA should describe this 

outreach as well as the number and type 

of other U.S. fishing vessels that could 

be subject to non-U.S. boarding and 

inspection. 

Response: NMFS will endeavor to 

ensure that all affected U.S. fishing 

vessels are aware of this new 

requirement, such as by making copies 

of this final rule and its associated small 

entity compliance guide available to 

affected permit holders. 

Comment 23: In the case of a high 

seas boarding and inspection of a U.S. 

vessel, NMFS or the U.S. Coast Guard 

should establish and maintain 

communication with the U.S. vessel 

during the boarding and inspection and 

should also follow up with the vessel 

afterwards to ascertain if any problems 

occurred. NMFS should also provide 

guidelines for U.S. vessel operators to 

follow in the event of a boarding on the 

high seas by a WCPFC member nation. 

Response: U.S. Government entities 

such as NMFS and the U.S. Coast Guard 

will establish and maintain 

communications with U.S. vessels as 

required under applicable laws and in 

accordance with agency policies and 

practices. This rule establishes the 

requirements with which U.S. vessel 

operators must comply in the event of 

a boarding and inspection undertaken 

pursuant to WCPFC procedures. These 

requirements are also explained in the 

small entity compliance guide prepared 

for this rule, available at http:// 

www.fpir.noaa.gov/IFD/ 

ifd_documents_data.html. 

Confidentiality of Information 

Comment 24: The proposed rule and 

the EA offer no details on how the 

proposed procedures regarding the 

confidentiality of information vary or 

are consistent with current procedures, 

what specific procedures will be 

followed, or what specific information 

will be protected. Without this 

information, it is not possible to 

comment on this issue. All information 

submitted by or collected from vessel 

owners, operators, or crew must be 

treated as confidential business 

information and not released in any 

manner that reveals the identities, 

operations, or fishing locations of any 

individual vessel. Fishing operations, 

locations, and catches are considered to 

be proprietary business information and 

must be treated as such. Furthermore, 

the EA should discuss the current status 

of agreements within the WCPFC with 

respect to confidential information. 

Response: NMFS does not believe that 

any of this further information was or is 

needed in the proposed rule or the EA. 

The procedures established in this rule 

regarding the confidentiality of 

information are consistent with, and 

implement, the requirements of the 

WCPFC Implementation Act, 

specifically section 506(d). The 

provisions of that section are 

substantially similar to the information 

confidentiality provisions of the MSA. 

Accordingly, the procedures established 

in this rule are substantially similar to 

the procedures established under the 

MSA (see 50 CFR part 600, subpart E), 

but tailored to conform to the provisions 

of the WCPFC Implementation Act. 

With respect to agreements with the 

WCPFC, there are no bilateral 

agreements between the U.S. 

Government and the WCPFC with 

respect to confidential information, 

such as an agreement that would 

prevent public disclosure of the identity 

or business of any person, as referred to 

in section 506(d)(1)(B) of the WCPFC 

Implementation Act. However, 

information held by the WCPFC is 

subject to rules and procedures 

concerning the protection of, access to, 

and dissemination of WCPFC-held data. 

These rules and procedures are 

available at: http://www.wcpfc.int/ 

guidelines-procedures-and-regulations. 

Other 

Comment 25: The definition of 

‘‘fishing’’ should not include activities 

that take place in port, such as 

transshipping. The proposed definition, 

which would include transshipment, 

could improperly cause days in port to 

be counted against available fishing 

days. 

Response: The definition of ‘‘fishing’’ 

in the regulations must be consistent 

with the definition in the WCPFC 

Implementation Act, which specifies 

that ‘‘fishing’’ includes transshipment, 

but only ‘‘at sea.’’ Accordingly, NMFS 

has revised the definition of ‘‘fishing’’ in 

the final rule to clarify that it includes 

transshipment, but only at sea. 

Comment 26: Carriers and refueling 

vessels should not be treated as fishing 

vessels in virtually all ways; the United 

States should be careful to not impose 

more regulations on these vessels than 

are required; we hope the United States 

will continue to negotiate reasonable 

working arrangements for these vessels. 

Response: The definition in this rule 

of ‘‘fishing vessel’’ includes carriers and 

bunkering and other support vessels, 

consistent with the definition of ‘‘fishing 

vessel’’ in the WCPFC Implementation 

Act. The scope of the regulations 

established in this rule as they relate to 

carriers and bunkers is consistent with 

the provisions of the Convention and 


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the decisions of the WCPFC. NMFS, as 

part of U.S. delegations to the WCPFC, 

will continue to promote conservation 

and management measures that include 

appropriate and reasonable 

requirements for carriers and bunkers. 

Comment 27: Overall, the EA should 

be improved to discuss the impact of the 

‘‘non-discretionary’’ obligations. 

Response: The EA addressed the 

‘‘non-discretionary’’ provisions of the 

rule as part of the cumulative impacts 

analysis, as specified in Section 4.2.13 

of the EA. The non-discretionary 

provisions would impose a financial 

burden on fishermen that is minor 

relative to the total gross revenue earned 

by each fishing vessel. Table 40 of the 

EA details this financial burden. 

Accordingly, the financial burden of the 

non-discretionary provisions in addition 

to the financial burden imposed on 

fishermen from the discretionary 

provisions, would enhance the 

likelihood and/or magnitude of the 

expected environmental impacts of the 

discretionary provisions of the rule 

(which are detailed in the EA), but only 

slightly so. 

Comment 28: Table 41 of the EA 

indicates that NMFS contacted the 

Western Pacific Regional Fishery 

Management Council (Council) for 

information, but the Council has no 

record of this. 

Response: As indicated in Section 1.3 

of the EA, NMFS published a Notice of 

Intent (NOI) to prepare the EA in the 

Federal Register on February 26, 2007. 

During the time between the publication 

of the NOI and issuance of the EA, 

NMFS informally discussed the scope 

and contents of the EA with Council 

staff who have NEPA expertise. Thus, 

NMFS believed it appropriate to list the 

Council as a party that was contacted for 

information in Table 41 of the EA. 

Comment 29: It is vital to the survival 

of the U.S. purse seine fleet that the 

United States negotiate measures in 

regional fisheries management 

organizations (RFMO) that impose a 

comparable burden on all participants 

in the fishery, and that U.S. fishermen 

do not bear an unfair amount of the 

conservation burden. Furthermore, it is 

critical to the survival of the U.S. purse 

seine fleet that domestic regulations 

implementing RFMO measures not be 

significantly more burdensome on the 

U.S. fleet than those imposed on the 

fleet’s foreign competitors. Also, it is the 

responsibility of the U.S. Government to 

ensure that other governments 

implement substantially similar rules 

and regulations, and the U.S. 

Government should promptly give 

notice to the appropriate RFMO of any 

shortcomings in the regulations and 

enforcement by other member countries 

of the RFMO. 

Response: This comment does not 

pertain to the proposed rule itself. 

NMFS, as part of U.S. delegations to the 

WCPFC and other RFMOs, shares the 

view that all participants in affected 

fisheries should share comparable 

burdens when seeking to achieve 

conservation and management 

objectives, and NMFS applies this 

principle in its role as part of U.S. 

delegations to the WCPFC and other 

RFMOs. As part of such U.S. 

delegations, NMFS routinely endeavors 

to determine whether all RFMO 

members are satisfying their obligations 

to implement the decisions of the 

RFMOs, and to alert the RFMOs, as 

appropriate, about any shortcomings in 

such implementation. 

Changes From the Proposed Rule 

In the proposed regulations, 

regulatory instruction (3) said that 

‘‘Subpart O, consisting of §§ 300.210 

through 200.222, is added to part 300 to 

read as follows:’’ The instruction was 

meant to read ‘‘* * * consisting of 

§§ 300.210 through 300.222 * * *’’ and 

the corresponding instructions in this 

final rule are corrected accordingly. 

The proposed rule that led to this 

final rule would have established a new 

subpart O in part 300 of title 50 of the 

Code of Federal Regulations, titled 

‘‘Western and Central Pacific Fisheries 

for Highly Migratory Species.’’ However, 

on August 4, 2009, after publication of 

that proposed rule, NMFS published in 

the Federal Register a final rule to 

implement certain decisions of the 

WCPFC (74 FR 38544). That final rule 

(called here the ‘‘WCPFC purse seine 

rule’’) established subpart O in part 300 

of title 50, including some of the 

definitions and certain other regulations 

that would have been established in the 

proposed rule for this action. 

Consequently, the regulations in this 

final rule are written as amendments to 

the sections in subpart O, and since 

some of the regulations in the proposed 

rule for this action have already been 

established in the WCPFC purse seine 

rule, they need not be included in this 

final rule. Specifically, the following 

elements of the regulations in the 

proposed rule for this action are not 

included in this final rule: § 300.210, 

‘‘Purpose and scope,’’ in its entirety; in 

§ 300.211, ‘‘Definitions,’’ the 

introductory sentence and the 

definitions for all the terms needed in 

the WCPFC purse seine rule; in 

§ 300.215, ‘‘Observers,’’ all of paragraph 

(c) except the sentence ‘‘All fishing 

vessels subject to this section must carry 

a WCPFC observer when directed to do 

so by NMFS’’ (which has been further 

revised—see below); and in § 300.222, 

‘‘Prohibitions,’’ the introductory 

sentence. 

In § 300.211, ‘‘Definitions,’’ the 

definition of ‘‘Fishing’’ has been revised 

to clarify that it includes transshipment 

only if the transshipment takes place at 

sea. 

In § 300.212, ‘‘Vessel permit 

endorsements,’’ the following statement 

has been removed from paragraph (c)(3), 

which relates to the requirement that a 

photograph of the subject vessel be 

included with the application for a 

WCPFC Area Endorsement: ‘‘A vessel 

photograph submitted as part of an 

application for a high seas fishing 

permit will be deemed to satisfy the 

requirement under this section, 

provided that it clearly shows that the 

vessel is marked in accordance with the 

vessel identification requirements of 

§ 300.217 and it meets the specifications 

prescribed on the WCPFC Area 

Endorsement application form.’’ This 

statement was included in the proposed 

rule in anticipation that the high seas 

fishing permit application requirements 

under 50 CFR 300.13 might be revised 

to require that the applicant provide a 

vessel photograph. The high seas permit 

application requirements have not been 

revised in that manner, so the statement 

has been removed from this final rule. 

Also in § 300.212, paragraph (f) has been 

revised to clarify that a WCPFC Area 

Endorsement shall be void whenever 

the underlying high seas fishing permit 

is void, ‘‘suspended, sanctioned or 

revoked,’’ and ‘‘is also subject to 

suspension or revocation independent 

of the high seas fishing permit.’’ 

In § 300.215, ‘‘Observers,’’ paragraph 

(c) has been clarified to say that the 

requirement to carry a WCPFC observer 

when directed to do so by NMFS is 

limited to fishing trips during which the 

fishing vessel at any time enters or is 

within the Convention Area. 

In § 300.216, ‘‘Transshipment,’’ 

paragraph (b) has been clarified to say 

that the restrictions apply to 

transshipments from purse seine fishing 

vessels ‘‘of the United States’’ and to 

transshipments from purse seine fishing 

vessels to fishing vessels ‘‘of the United 

States.’’ 

In § 300.217, ‘‘Vessel identification,’’ a 

new paragraph (c) has been added to say 

that the section does not apply to 

fishing vessels that are subject to the 

vessel identification requirements of 50 

CFR 300.173 or 660.704 until conflicts 

with those requirements are reconciled, 

and only upon publication in the 

Federal Register of a notice or final rule 

that includes a statement to that effect. 


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3344 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

In § 300.218, ‘‘Reporting and 

recordkeeping,’’ paragraph (a)(1) has 

been clarified to say that the 

requirements of the section apply to 

fishing vessels ‘‘of the United States’’ 

used for commercial fishing for HMS in 

the Pacific Ocean. 

In § 300.219, ‘‘Vessel monitoring 

system,’’ paragraph (a) has been revised 

to include the NOAA Office of Law 

Enforcement’s VMS Helpdesk as a 

contact for the purpose of submitting 

on/off reports. Also in § 300.219, several 

references to ‘‘NMFS’’ have been 

replaced by ‘‘the SAC’’ in order to clarify 

that certain communications from 

NMFS can be expected to be received 

specifically from the SAC, which is the 

Special-Agent-In-Charge, NOAA Office 

of Law Enforcement, Pacific Islands 

Division, or a designee. 

In § 902.1(b) of title 15 of the Code of 

Federal Regulations, which includes a 

table listing control numbers issued by 

the Office of Management and Budget 

(OMB) for collections of information 

required under NOAA regulations, new 

entries have been added for the OMB 

control numbers approved for the 

information collections required under 

§§ 300.212, 300.213, and 300.219 of title 

50 of the Code of Federal Regulations. 

Delegation of Authority 

Under NOAA Administrative Order 

205–11, dated December 17, 1990, the 

Under Secretary for Oceans and 

Atmosphere has delegated authority to 

sign material for publication in the 

Federal Register to the Assistant 

Administrator for Fisheries, NOAA. 

Classification 

The NOAA Assistant Administrator 

for Fisheries has determined that this 

final rule is consistent with the WCPFC 

Implementation Act and other 

applicable laws. 

National Environmental Policy Act 

NMFS prepared an Environmental 

Assessment (EA) that discusses the 

expected impacts that implementation 

of the rule would have on the 

environment. NMFS issued a draft 

version of the EA for public review and 

comment in conjunction with the 

proposed rule. Comments on the draft 

EA have been addressed in the preamble 

to the final rule. The final version of the 

EA is available at http:// 

www.fpir.noaa.gov/IFD/ 

ifd_documents_data.html. NMFS 

analyzed four action alternatives as well 

as the no-action, or baseline, alternative 

in the EA. The action alternatives 

include the provisions of the rule that 

are discretionary in nature (i.e., the 

provisions that allow NMFS discretion 

in the methods and means to implement 

them), while the other provisions of the 

rule were analyzed as part of the 

cumulative impacts analysis. The 

primary environmental effect of any of 

the action alternatives is that 

implementation of the requirements 

would make it more costly to fish, and 

thus, there could be a disincentive to 

fish, at least in the area of application 

of the requirements. However, the 

disincentive to fish would be expected 

to be minor for the majority of affected 

vessels. At most, the disincentive to fish 

could result in slight decreases in 

longline and/or albacore troll fishing 

effort on the high seas in the area of 

application of the Convention, and 

correspondingly slight increases in 

other areas. None of the requirements 

would directly control fishing practices 

per se, such as how much fishing effort 

is exerted, how much of a given 

resource may be caught, where fishing 

may take place, what type of fishing 

gear may be used, or how fishing gear 

may be deployed. None of the action 

alternatives would authorize or open the 

possibility for a new fishery or expand 

fishing opportunities. None of the action 

alternatives would be anticipated to 

result in an increase in fishing effort in 

the area of application of the 

Convention, and none would be 

expected to result in marked changes in 

fishing patterns anywhere. The nondiscretionary provisions of the rule 

analyzed as part of the cumulative 

impacts analysis would also make it 

more costly to fish, and thus, would 

enhance the likelihood and/or 

magnitude of the expected impacts of 

the action alternatives, but only slightly 

so. The contribution to cumulative 

environmental impacts on the affected 

environment from any of the provisions 

in the rule would be minor. The final 

rule implements Alternative D, because 

it would achieve what NMFS believes is 

the best balance between the 

compliance costs that would be 

imposed on fishermen and the 

effectiveness of the resulting 

management regime. Based on the 

analysis in the EA, NMFS has 

determined that there will be no 

significant impact on the human 

environment as a result of this rule. 

The economic impacts of the rule are 

addressed in the EA only insofar as they 

are related to impacts to the biophysical 

environment. They are addressed more 

fully in the RIR, IRFA, and FRFA. A 

copy of the EA is available from NMFS 

(see ADDRESSES). 

Executive Order 12866 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Regulatory Flexibility Act 

NMFS prepared a final regulatory 

flexibility analysis (FRFA) for the rule, 

Initial Implementation of the Western 

and Central Pacific Fisheries 

Convention. The FRFA incorporates the 

IRFA prepared for the proposed rule (74 

FR 23965; May 22, 2009; available from 

NMFS—see ADDRESSES). The analysis 

provided in the IRFA is not repeated 

here in its entirety. 

The need for, reasons why action by 

the agency is being considered, and the 

objectives of the action are explained in 

the preambles to the proposed rule and 

final rule and are not repeated here. 

There are no disproportionate economic 

impacts between small and large vessels 

resulting from this final rule. 

Furthermore, there are no 

disproportionate economic impacts 

from this rule based on vessel size, gear, 

or homeport. The new recordkeeping or 

reporting requirements in this rule, as 

well as other compliance requirements, 

are described in the IRFA. This final 

rule is issued under authority of the 

WCPFC Implementation Act. 

Description of Small Entities to Which 

the Rule Will Apply 

This final rule will apply to owners 

and operators of U.S. vessels used for 

fishing in the Pacific Ocean. Most 

elements of the proposed rule will apply 

to smaller subsets of that pool of vessels, 

as shown in Table 1. The numbering of 

the elements in Table 1 corresponds to 

the numbering used in the descriptions 

earlier in this section of the preamble. 

Table 1 also shows estimates of the 

numbers of vessels, broken down by 

vessel type where possible, to which 

each element of the rule will apply. 

Based on available financial information 

about the affected fishing fleets, NMFS 

believes that with the exception of most 

vessels in the purse seine and carrier 

and support vessel fleets, virtually all 

the affected vessels are owned by small 

business entities (i.e., they have gross 

annual receipts of no more than $4.0 

million). In the purse seine fleet, NMFS 

believes that as many as 10 of the 

affected vessels are owned by small 

entities. In the carrier and support 

vessel fleet, NMFS believes that no 

vessels are owned by small entities. The 

estimated numbers of small entities that 

will be affected by each element of the 

rule are shown in parentheses in the last 

column of Table 1. 


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TABLE 1—DESCRIPTIONS AND NUMBERS OF VESSELS AND SMALL ENTITIES TO WHICH THE PROPOSED RULE WOULD

APPLY

Element of proposed rule Description of vessels to which element 

would apply 

Estimated number of vessels 

(and small entities) to which element 

would apply 

1. Authorization to fish ............................................ Vessels used for commercial fishing for HMS on 

high seas in Convention Area.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

2a. Vessel information—high seas ......................... Vessels used for commercial fishing for HMS on 

high seas in Convention Area.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

2b. Vessel information—foreign jurisdictions .......... Vessels used for commercial fishing for HMS in 

foreign jurisdictions in Convention Area.

Longline, troll, support 20 (20). 

Purse seine 40 (10). 

Total 60 (30). 

3. VMS ..................................................................... Vessels used for commercial fishing for HMS on 

high seas in Convention Area.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

4. Vessel observer program .................................... Vessels used for commercial fishing for HMS on 

high seas in Convention Area.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

5. Vessel identification ............................................ Vessels used for commercial fishing for HMS on 

high seas in Convention Area.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

6. Transshipment restrictions .................................. Purse seine vessels used for fishing in Convention Area and vessels used to receive fish in 

Convention Area.

Longline 0 (0). 

Purse seine 40 (10). 

Troll 0 (0). 

Support 5 (0). 

Total 45 (10). 

7. Reporting and recordkeeping .............................. Vessels used for commercial fishing for HMS in 

Pacific Ocean.

Total 5,000 (5,000). 

8a. Compliance with the laws of other nations— 

high seas.

Vessels used for commercial fishing for HMS on 

high seas in Convention Area.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

8b. Compliance with the laws of other nations—jurisdictions of other WCPFC members.Vessels used for commercial fishing for HMS in 

areas under the jurisdiction of other WCPFC 

members.

Longline, troll, support 20 (20). 

Purse seine 40 (10). 

Total 60 (30). 

9a. Facilitation of enforcement and inspection— 

HMS fishing.

Vessels used for commercial fishing for HMS in 

the Convention Area on high seas or in areas 

under the jurisdiction of other nations.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

9b. Facilitation of enforcement and inspection—all 

fishing.

Fishing vessels used on high seas in Convention 

Area.

Longline 139 (139). 

Purse seine 40 (10). 

Troll 69 (69). 

Support 5 (0). 

Total 253 (218). 

10. Confidentiality of information ............................. None ....................................................................... Longline 0 (0). 

Purse seine 0 (0). 

Troll 0 (0). 

Support 0 (0). 

Total 0 (0). 

Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities 

NMFS explored alternatives that 

would achieve the objective of this 

action (to satisfy the international 

obligations of the United States under 

the Convention and accomplish the 

objectives of the WCPFC 

Implementation Act) while minimizing 

economic impacts on small entities. As 

described in the IRFA, NMFS has 

limited discretion as to how to 

implement the provisions of the 

Convention and the decisions of the 

WCPFC. Consequently, NMFS was able 

to identify alternatives that would 

satisfy the Convention’s provisions for 

only four elements of the rule, as 

identified in the IRFA: Element (1), 


srobinson on DSKHWCL6B1PROD with RULES
3346 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

authorization to fish; element (2), vessel 

information; element (3), VMS; and the 

high seas boarding and inspection 

component of element (9), facilitation of 

enforcement and inspection. NMFS was 

not able to identify any additional 

alternatives that would minimize 

significant economic impacts on small 

entities while satisfying the obligations 

of the United States under the 

Convention. The alternatives considered 

in the IRFA, and the reasons for 

preferring one over another, are 

summarized below. 

With respect to element (1), 

authorization to fish, one alternative 

would be to rely on the existing high 

seas fishing permit requirement under 

the HSFCA (that requirement applies to 

the high seas globally, not just the high 

seas in the Convention Area), rather 

than establishing an additional 

authorization requirement. Although 

this would be less costly to affected 

small entities than the proposed action, 

this alternative would fail to identify the 

pool of vessel owners and operators 

interested in fishing on the high seas in 

the Convention Area and subject to all 

the other Convention-related 

requirements. As a consequence, it 

would be difficult to conduct effective 

outreach and enforcement activities to 

achieve a high level of compliance with 

those requirements. For that reason, this 

alternative was rejected. A second 

alternative would be to create a new 

stand-alone permit (WCPFC Area 

Permit) that would be required for any 

vessel used for commercial fishing for 

HMS on the high seas in the Convention 

Area but which, unlike the proposed 

WCPFC Area Endorsement (which 

would be an endorsement on a high seas 

fishing permit), would not be related in 

any way to the high seas fishing permit. 

This would be slightly more costly to 

affected small entities than the WCPFC 

Area Endorsement. For that reason, this 

alternative was rejected. 

With respect to element (2), vessel 

information, one alternative would be to 

collect the needed information 

separately from any permit requirement; 

that is, as a stand-alone requirement for 

vessel owners to submit specified 

information to NMFS. The cost to 

affected small entities would be about 

the same as that of the proposed action, 

but because it would not be tied to 

obtaining a fishing authorization, 

compliance with this alternative would 

likely be poorer than for the proposed 

action. For that reason, this alternative 

was rejected. A second alternative 

would be to collect the needed 

information via the application for a 

WCPFC Area Permit. The cost to 

affected small entities under this 

alternative would be about the same as 

that of the proposed action, but because 

the cost of the WCPFC Area Permit 

alternative would be slightly more 

costly to affected small entities than the 

WCPFC Area Endorsement alternative 

(see above), this alternative was 

rejected. 

With respect to element (3), VMS, one 

alternative would be to require that 

VMS units be carried and operated on 

vessels used for commercial fishing for 

HMS on the high seas in the Convention 

Area, but only when the subject vessel 

is actually on the high seas in the 

Convention Area. This could be slightly 

less costly to affected small entities 

because they would be allowed to turn 

off the VMS unit when not on the high 

seas in the Convention Area, but 

because vessel operators would be 

allowed to operate in many areas with 

their VMS units disabled, compliance 

with this alternative while on the high 

seas in the Convention Area would be 

expected to be lower than under the 

proposed action. That is, it is expected 

that more vessels would operate within 

the Convention Area more often without 

operating their VMS units. For that 

reason, this alternative was rejected. A 

second alternative would be to require 

that VMS units be carried and operated 

on vessels used for commercial fishing 

for HMS during the entirety of any trip 

that includes the high seas in the 

Convention Area. Like the previous 

alternative, this could be slightly less 

costly to affected small entities than the 

proposed action, but for the same 

reasons cited for the previous 

alternative, compliance with this 

alternative would likely be poorer than 

for the proposed action. For that reason, 

this alternative was rejected. A third 

alternative would be to require that a 

VMS unit be carried and operated at all 

times on any vessel with a WCPFC Area 

Permit. The costs to affected small 

entities under this alternative would be 

slightly more than under the proposed 

action. For that reason, and because the 

WCPFC Area Permit alternative would 

be slightly more costly to affected small 

entities than the WCPFC Area 

Endorsement alternative (see above), 

this alternative was rejected. 

With respect to the high seas boarding 

and inspection component of element 

(9), facilitation of enforcement and 

inspection, one alternative would be to 

require that only operators of vessels 

used to fish for HMS (rather than for any 

species, as being proposed) on the high 

seas in the Convention Area accept and 

facilitate boarding and inspection by 

authorized inspectors of other members 

of the WCPFC. The number of affected 

small entities would be smaller than 

under the proposed action. However, 

since the inspectors of other members of 

the WCPFC may not be able to readily 

distinguish U.S. vessels used for fishing 

for HMS (which the WCPFC’s boarding 

and inspection regime is designed to 

target) from other U.S. fishing vessels, 

an effective boarding regime may 

require that U.S. fishing vessels in the 

latter category accept boarding from 

inspection vessels of other members of 

the WCPFC in order to verify the fishing 

vessel’s status. By applying this 

requirement to all U.S. fishing vessels, 

not just those used for fishing for HMS, 

non-HMS U.S. fishing vessels would be 

more prepared for the prospect of being 

boarded and inspected. As a 

consequence of such preparation, any 

boardings and inspections of non-HMS 

U.S. fishing vessels would be more 

likely to be completed quickly and 

without misunderstandings and the 

potential for conflict. NMFS believes 

that the proposed action would be safer 

and less costly to small entities than the 

alternative of applying the requirement 

only to operators of vessels used to fish 

for HMS. For that reason, the alternative 

of applying this requirement to just 

those vessels used for fishing for HMS 

was rejected. 

The alternative of taking no action at 

all was rejected because it would fail to 

accomplish the objective of the WCPFC 

Implementation Act or satisfy the 

international obligations of the United 

States as a Contracting Party to the 

Convention. 

The selected alternative would satisfy 

the international obligations of the 

United States as a Contracting Party to 

the Convention and thereby accomplish 

the objective of the WCPFC 

Implementation Act, and do so with 

minimal adverse economic impacts on 

small entities, and for these reasons was 

adopted in the final rule. 

Comments and Responses on the IRFA 

NMFS received a number of 

comments on the proposed rule that 

pertained to information in the IRFA. 

These were comments 7, 8, 9, 10, 11, 14, 

15, 16, 17, 18, 19, 20, 22, and 23, as 

presented in a previous section of this 

preamble. These comments, and NMFS’ 

responses, are incorporated by reference 

into this FRFA. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3347 

publications as ‘‘small entity compliance 

guides.’’ The agency shall explain the 

actions a small entity is required to take 

to comply with a rule or group of rules. 

As part of this rulemaking process, a 

small entity compliance guide (the 

guide) has been prepared. The guide 

will be sent to all holders of relevant 

fishing permits and licenses. Copies of 

this final rule and the guide are 

available from NMFS (see ADDRESSES) 

and are available at: http:// 

www.fpir.noaa.gov/IFD/ 

ifd_documents_data.html. 

Paperwork Reduction Act 

This final rule contains collection-ofinformation requirements subject to the 

Paperwork Reduction Act (PRA). The 

collection of this information has been 

approved by the Office of Management 

and Budget (OMB) under OMB Control 

Numbers 0648–0595 (vessel information 

requirements) and 0648–0596 (VMS 

requirements). The public reporting 

burden for the vessel information 

requirements is estimated to average 60 

minutes per WCPFC Area Endorsement 

application, with about one application 

per five years per respondent (i.e., 12 

minutes per respondent per year, on 

average); and about 90 minutes per 

Foreign EEZ Form, with about one form 

per five years per respondent (i.e., 18 

minutes per respondent per year, on 

average). The public reporting burden 

for the VMS requirements is estimated 

to average 5 minutes per activation 

report, with about one activation report 

per two years per respondent (i.e., 2.5 

minutes per respondent per year, on 

average); 5 minutes per on/off report, 

with about 10 on/off reports per year per 

respondent (i.e., 50 minutes per 

respondent per year, on average); 4 

hours per VMS unit purchase and 

installation, with about one purchase 

and installation per four years per 

respondent (i.e., 1 hour per respondent 

per year, on average); and 1 hour per 

year per respondent for VMS unit 

maintenance (i.e., 1 hour per respondent 

per year, on average). These estimated 

burdens include the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Send comments regarding these burden 

estimates or any other aspect of this data 

information, including suggestions for 

reducing the burden, to NMFS (see 

ADDRESSES) and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number. 

Prior notice and opportunity for 

public comment are not required with 

respect to the revision to the table of 

OMB control numbers in 15 CFR 

902.1(b) because this action is a rule of 

agency organization, procedure or 

practice under 5 U.S.C. 553(b)(A). 

List of Subjects 

15 CFR Part 902 

Reporting and recordkeeping 

requirements. 

50 CFR Part 300 

Administrative practice and 

procedure, Fish, Fisheries, Fishing, 

Marine resources, Reporting and 

recordkeeping requirements, Treaties. 

Dated: January 14, 2010. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 15 CFR Chapter IX and 50 

CFR Chapter III are amended as follows: 

15 CFR CHAPTER IX—NATIONAL OCEANIC 

AND ATMOSPHERIC ADMINISTRATION, 

DEPARTMENT OF COMMERCE 

PART 902—NOAA INFORMATION 

COLLECTION REQUIREMENTS UNDER 

THE PAPERWORK REDUCTION ACT: 

OMB CONTROL NUMBERS 

■ 1. The authority citation for part 902 

continues to read as follows: 

Authority: 44 U.S.C. 3501 et seq. 

■ 2. In § 902.1, paragraph (b), the table 

is amended by adding in the left column 

under 50 CFR, in numerical order, 

entries for §§ 300.212, 300.213, and 

300.219, and, in the right column, in 

corresponding positions, the control 

numbers ‘‘–0595,’’ ‘‘–0595,’’ and ‘‘–0596,’’ 

as follows: 

§ 902.1 OMB control numbers assigned 

pursuant to the Paperwork Reduction Act. 

* * * * * 

(b) * * * 

CFR part or section where 

the information collection 

requirement is located 

Current OMB 

control number 

(all numbers 

begin with 

0648–) 

* * * * * 

50 CFR 

* * * * * 

300.212 ............................. –0595 

300.213 ............................. –0595 

300.219 ............................. –0596 

CFR part or section where 

the information collection 

requirement is located 

Current OMB 

control number 

(all numbers 

begin with 

0648–) 

* * * * * 

50 CFR CHAPTER III—INTERNATIONAL 

FISHING AND RELATED ACTIVITIES 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart B—High Seas Fisheries 

■ 3. The authority citation for 50 CFR 

part 300, subpart B, continues to read as 

follows: 

Authority: 16 U.S.C. 5501 et seq. 

■ 4. In § 300.14, paragraph (b)(2)(i) is 

revised to read as follows: 

§ 300.14 Vessel identification. 

* * * * * 

(b) * * * 

(2) * * * 

(i) A vessel must be marked with its 

IRCS if it has been assigned an IRCS. If 

an IRCS has not been assigned to the 

vessel, it must be marked (in order of 

priority) with its Federal, State, or other 

documentation number appearing on its 

high seas fishing permit and if a WCPFC 

Area Endorsement has been issued for 

the vessel under § 300.212, that 

documentation number must be 

preceded by the characters ‘‘USA’’ and a 

hyphen (that is, ‘‘USA-’’). 

* * * * * 

Subpart O—Western and Central 

Pacific Fisheries for Highly Migratory 

Species 

■ 5. The authority citation for 50 CFR 

part 300, subpart O, continues to read as 

follows: 

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

■ 6. In § 300.211, definitions of ‘‘1982 

Convention,’’ ‘‘Aggregate or summary 

form,’’ ‘‘Commercial,’’ ‘‘Confidential 

information,’’ ‘‘Conservation and 

management measure,’’ ‘‘High seas 

fishing permit,’’ ‘‘Highly migratory 

species (or HMS),’’ ‘‘Marine Fisheries 

Commission,’’ ‘‘NOAA,’’ ‘‘Observer 

employer/observer provider,’’ ‘‘Observer 

information,’’ ‘‘Special Agent-In-Charge 

(or SAC),’’ ‘‘Vessel monitoring system (or 

VMS),’’ ‘‘VMS unit,’’ ‘‘WCPFC Area 

Endorsement,’’ ‘‘WCPFC inspection 

vessel,’’ ‘‘WCPFC inspector,’’ and 

‘‘WCPFC transshipment monitor’’ are 

added, in alphabetical order, and the 

definition of ‘‘Fishing’’ is revised, to read 

as follows: 


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§ 300.211 Definitions. 

* * * * * 

1982 Convention means the United 

Nations Convention on the Law of the 

Sea of 10 December 1982. 

Aggregate or summary form means 

information structured in such a way 

which does not directly or indirectly 

disclose the identity or business of any 

person who submits such information. 

Commercial, with respect to 

commercial fishing, means fishing in 

which the fish harvested, either in 

whole or in part, are intended to enter 

commerce through sale, barter or trade. 

* * * * * 

Confidential information means any 

observer information or any information 

submitted to the Secretary, a State 

fishery management agency, or a Marine 

Fisheries Commission by any person in 

compliance with any requirement or 

regulation under the Act or under the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Conservation and management 

measure means those conservation and 

management measures adopted by the 

Commission pursuant to Article 10 of 

the WCPF Convention. 

* * * * * 

Fishing means using any vessel, 

vehicle, aircraft or hovercraft for any of 

the following activities, or attempting to 

do so: 

(1) Searching for, catching, taking, or 

harvesting fish; 

(2) Engaging in any other activity 

which can reasonably be expected to 

result in the locating, catching, taking, 

or harvesting of fish for any purpose; 

(3) Placing, searching for, or 

recovering fish aggregating devices or 

associated electronic equipment such as 

radio beacons; 

(4) Engaging in any operations at sea 

directly in support of, or in preparation 

for, any of the activities previously 

described in paragraphs (1) through (3) 

of this definition, including, but not 

limited to, bunkering; 

(5) Engaging in transshipment at sea, 

either unloading or loading fish. 

* * * * * 

Highly migratory species (or HMS) 

means any of the following species: 

Common name Scientific name 

Albacore ............................................................................. Thunnus alalunga. 

Pacific bluefin tuna ............................................................. Thunnus orientalis. 

Southern bluefin tuna ......................................................... Thunnus maccoyii. 

Bigeye tuna ........................................................................ Thunnus obesus. 

Skipjack tuna ...................................................................... Katsuwonus pelamis. 

Yellowfin tuna ..................................................................... Thunnus albacares. 

Little tuna ............................................................................ Euthynnus affinis. 

Frigate mackerel ................................................................ Auxis thazard; Auxis rochei. 

Pomfrets ............................................................................. Family Bramidae. 

Marlins ................................................................................ Tetrapturus angustirostris; Tetrapturus audax; Makaira mazara; Makaira indica; 

Makaira nigricans. 

Sail-fishes ........................................................................... Istiophorus platypterus. 

Swordfish ............................................................................ Xiphias gladius. 

Dolphinfish .......................................................................... Coryphaena hippurus; Coryphaena equiselis. 

Oceanic sharks .................................................................. Hexanchus griseus; Cetorhinus maximus; Family Alopiidae; Rhincodon typus; Family 

Carcharhinidae; Family Sphyrnidae; Family Isuridae (or Lamnidae). 

High seas fishing permit means a 

permit issued under § 300.13. 

* * * * * 

Marine Fisheries Commission means 

the Atlantic States Marine Fisheries 

Commission, the Gulf States Marine 

Fisheries Commission, or the Pacific 

States Marine Fisheries Commission. 

* * * * * 

NOAA means the National Oceanic 

and Atmospheric Administration, 

Department of Commerce. 

Observer employer/observer provider 

means any person that provides 

observers to fishing vessels, shoreside 

processors, or stationary floating 

processors under a requirement of the 

Act or the Magnuson-Stevens Fishery 

Conservation and Management Act. 

Observer information means any 

information collected, observed, 

retrieved, or created by an observer or 

electronic monitoring system pursuant 

to authorization by the Secretary, or 

collected as part of a cooperative 

research initiative, including fish 

harvest or processing observations, fish 

sampling or weighing data, vessel 

logbook data, vessel or processorspecific information (including any 

safety, location, or operating condition 

observations), and video, audio, 

photographic, or written documents. 

* * * * * 

Special Agent-In-Charge (or SAC) 

means the Special-Agent-In-Charge, 

NOAA Office of Law Enforcement, 

Pacific Islands Division, or a designee 

(1601 Kapiolani Blvd., Suite 950, 

Honolulu, HI 96814; tel: (808) 203– 

2500; facsimile: (808) 203–2599; e-mail: 

pidvms@noaa.gov). 

* * * * * 

Vessel monitoring system (or VMS) 

means an automated, remote system that 

provides information about a vessel’s 

identity, location and activity, for the 

purposes of routine monitoring, control, 

surveillance and enforcement of area 

and time restrictions and other fishery 

management measures. 

VMS unit, sometimes known as a 

‘‘mobile transmitting unit,’’ means a 

transceiver or communications device, 

including all hardware and software, 

that is carried and operated on a vessel 

as part of a VMS. 

WCPFC Area Endorsement means the 

authorization issued by NMFS under 

§ 300.212, supplementary to a valid high 

seas fishing permit and expressed as an 

endorsement to such permit, for a 

fishing vessel used for commercial 

fishing for highly migratory species on 

the high seas in the Convention Area. 

* * * * * 

WCPFC inspection vessel means any 

vessel that is: 

(1) Authorized by a member of the 

Commission to be used to undertake 

boarding and inspection of fishing 

vessels on the high seas pursuant to, 

and in accordance with, Article 26 of 

the WCPF Convention and procedures 

established by the Commission pursuant 

thereto; 

(2) Included in the Commission’s 

register of authorized inspection vessels 

and authorities or inspectors, 

established by the Commission in 

procedures pursuant to Article 26 of the 

WCPF Convention; and 

(3) Flying the WCPFC inspection flag 

established by the Commission. 

WCPFC inspector means a person that 

is authorized by a member of the 


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Commission to undertake boarding and 

inspection of fishing vessels on the high 

seas pursuant to, and in accordance 

with, the boarding and inspection 

procedures adopted by the Commission 

under Article 26 of the WCPF 

Convention, and referred to therein as a 

‘‘duly authorized inspector’’ or 

‘‘authorized inspector.’’ 

* * * * * 

WCPFC transshipment monitor 

means, with respect to transshipments 

that take place on the high seas, a 

person authorized by the Commission to 

conduct transshipment monitoring on 

the high seas, and with respect to 

transshipments that take place in areas 

under the jurisdiction of a member of 

the Commission other than the United 

States, a person authorized by such 

member of the Commission to conduct 

transshipment monitoring. 

■ 7. Section 300.212 is added to read as 

follows: 

§ 300.212 Vessel permit endorsements. 

(a) Any fishing vessel of the United 

States used for commercial fishing for 

HMS on the high seas in the Convention 

Area must have on board a valid high 

seas fishing permit, or a copy thereof, 

that has a valid WCPFC Area 

Endorsement, or a copy thereof. 

(b) Eligibility. Only a fishing vessel 

that has a valid high seas fishing permit 

is eligible to receive a WCPFC Area 

Endorsement. 

(c) Application. (1) A WCPFC Area 

Endorsement may be applied for at the 

same time the underlying high seas 

permit is applied for, or at any time 

thereafter. 

(2) The owner or operator of a high 

seas fishing vessel may apply for a 

WCPFC Area Endorsement by 

completing an application form, 

available from the Pacific Islands 

Regional Administrator, and submitting 

the complete and accurate application, 

signed by the applicant, to the Pacific 

Islands Regional Administrator, along 

with the required fees. 

(3) The application must be 

accompanied by a bow-to-stern sideview photograph of the vessel in its 

current form and appearance. The 

photograph must meet the specifications 

prescribed on the application form and 

clearly show that the vessel is marked 

in accordance with the vessel 

identification requirements of § 300.217. 

(d) Fees. NMFS will charge a fee to 

recover the administrative expenses of 

issuance of a WCPFC Area 

Endorsement. The amount of the fee 

will be determined in accordance with 

the procedures of the NOAA Finance 

Handbook, available from the Pacific 

Islands Regional Administrator, for 

determining administrative costs of each 

special product or service. The fee is 

specified in the application form. The 

appropriate fee must accompany each 

application. Failure to pay the fee will 

preclude issuance of the WCPFC Area 

Endorsement. Payment by a commercial 

instrument later determined to be 

insufficiently funded is grounds for 

invalidating the WCPFC Area 

Endorsement. 

(e) Issuance. (1) The Pacific Islands 

Regional Administrator will issue a 

WCPFC Area Endorsement within 30 

days of receipt of a complete application 

that meets the requirements of this 

section and upon payment of the 

appropriate fee. 

(2) If an incomplete or improperly 

completed application is submitted, the 

Pacific Islands Regional Administrator 

will notify the applicant of such 

deficiency within 30 days of the date of 

receipt of the application. If the 

applicant fails to correct the deficiency 

and send a complete and accurate 

application to the Pacific Islands 

Regional Administrator within 30 days 

of the date of the notification of 

deficiency, the application will be 

considered withdrawn and no further 

action will be taken to process the 

application. Following withdrawal, the 

applicant may at any time submit a new 

application for consideration. 

(f) Validity. A WCPFC Area 

Endorsement issued under this subpart 

expires upon the expiration of the 

underlying high seas fishing permit, and 

shall be void whenever the underlying 

high seas fishing permit is void, 

suspended, sanctioned or revoked. A 

WCPFC Area Endorsement is also 

subject to suspension or revocation 

independent of the high seas fishing 

permit. Renewal of a WCPFC Area 

Endorsement prior to its expiration is 

the responsibility of the WCPFC Area 

Endorsement holder. 

(g) Change in application information. 

Any change in the required information 

provided in an approved or pending 

application for a WCPFC Area 

Endorsement must be reported by the 

vessel owner or operator to the Pacific 

Islands Regional Administrator in 

writing within 15 days of such change. 

(h) Transfer. A WCPFC Area 

Endorsement issued under this subpart 

is valid only for the vessel, owner, and 

high seas fishing permit to which it is 

issued and is not transferable or 

assignable to another high seas fishing 

permit or to another vessel. 

(i) Display. A valid WCPFC Area 

Endorsement, or a photocopy or 

facsimile copy thereof, issued under this 

subpart must be on board the vessel and 

available for inspection by any 

authorized officer while the vessel is at 

sea and must be available for inspection 

by any WCPFC inspector while the 

vessel is on the high seas in the 

Convention Area. 

■ 8. Section 300.213 is added to read as 

follows: 

§ 300.213 Vessel information. 

(a) The owner or operator of any 

fishing vessel of the United States that 

is used for fishing for HMS in the 

Convention Area in waters under the 

jurisdiction of any nation other than the 

United States must, prior to the 

commencement of such fishing, submit 

to the Pacific Islands Regional 

Administrator information about the 

vessel and its ownership and operation, 

and the authorized fishing activities, 

including copies of any permits, 

licenses, or authorizations issued for 

such activities, as specified on forms 

available from the Pacific Islands 

Regional Administrator. The owner or 

operator of such a fishing vessel must 

also submit to the Pacific Islands 

Regional Administrator a bow-to-stern 

side-view photograph of the vessel in its 

current form and appearance, and the 

photograph must meet the specifications 

prescribed on the application form. If 

any of the submitted information 

changes, the vessel owner or operator 

must report the updated information to 

the Pacific Islands Regional 

Administrator in writing within 15 days 

of the change. 

(b) If any of the information or the 

vessel photograph required under 

paragraph (a) of this section has been 

submitted for the subject vessel on an 

application for a high seas fishing 

permit or an application for a WCPFC 

Area Endorsement, then the 

requirements of paragraph (a) of this 

section will be deemed satisfied. 

However, in order to satisfy this 

requirement, the high seas fishing 

permit or WCPFC Area Endorsement 

must be valid, the information provided 

must be true, accurate and complete, 

and in the case of a vessel photograph, 

it must meet the specifications 

prescribed on the form used for the 

purpose of submitting the photograph 

under this section. 

■ 9. Section 300.214 is added to read as 

follows: 

§ 300.214 Compliance with laws of other 

nations. 

(a) The owner and operator of a 

fishing vessel of the United States with 

a WCPFC Area Endorsement or for 

which a WCPFC Area Endorsement is 

required: 


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(1) May not use the vessel for fishing, 

retaining fish on board, or landing fish 

in areas under the jurisdiction of a 

nation other than the United States 

unless any license, permit, or other 

authorization that may be required by 

such other nation for such activity has 

been issued with respect to the vessel. 

(2) Shall, when the vessel is in the 

Convention Area in areas under the 

jurisdiction of a member of the 

Commission other than the United 

States, operate the vessel in compliance 

with, and ensure its crew complies 

with, the applicable national laws of 

such member. 

(b) The owner and operator of a 

fishing vessel of the United States shall 

ensure that: 

(1) The vessel is not used for fishing 

for HMS, retaining HMS on board, or 

landing HMS in the Convention Area in 

areas under the jurisdiction of a nation 

other than the United States unless any 

license, permit, or other authorization 

that may be required by such other 

nation for such activity has been issued 

with respect to the vessel. 

(2) If the vessel is used for commercial 

fishing for HMS, including 

transshipment of HMS, in the 

Convention Area in areas under the 

jurisdiction of a member of the 

Commission other than the United 

States, the vessel is operated in 

compliance with, and the vessel crew 

complies with, the applicable laws of 

such member, including any laws 

related to carrying vessel observers or 

the operation of VMS units. 

(c) For the purpose of this section, the 

meaning of transshipment does not 

include transfers that exclusively 

involve fish that have been previously 

landed and processed. 

■ 10. In § 300.215, paragraphs (a), (c), 

and (d) are revised to read as follows: 

§ 300.215 Observers. 

(a) Applicability. This section applies 

to any fishing vessel of the United States 

with a WCPFC Area Endorsement or for 

which a WCPFC Area Endorsement is 

required. 

* * * * * 

(c) Accommodating observers. All 

fishing vessels subject to this section 

must carry, when directed to do so by 

NMFS, a WCPFC observer on fishing 

trips during which the vessel at any 

time enters or is within the Convention 

Area. The operator and each member of 

the crew of the fishing vessel shall act 

in accordance with this paragraph with 

respect to any WCPFC observer. 

(1) The operator and crew shall allow 

and assist WCPFC observers to: 

(i) Embark at a place and time 

determined by NMFS or otherwise 

agreed to by NMFS and the vessel 

operator; 

(ii) Have access to and use of all 

facilities and equipment on board as 

necessary to conduct observer duties, 

including, but not limited to: full access 

to the bridge, the fish on board, and 

areas which may be used to hold, 

process, weigh and store fish; full access 

to the vessel’s records, including its logs 

and documentation, for the purpose of 

inspection and copying; access to, and 

use of, navigational equipment, charts 

and radios; and access to other 

information relating to fishing; 

(iii) Remove samples; 

(iv) Disembark at a place and time 

determined by NMFS or otherwise 

agreed to by NMFS and the vessel 

operator; and 

(v) Carry out all duties safely. 

(2) The operator shall provide the 

WCPFC observer, while on board the 

vessel, with food, accommodation and 

medical facilities of a reasonable 

standard equivalent to those normally 

available to an officer on board the 

vessel, at no expense to the WCPFC 

observer. 

(3) The operator and crew shall not 

assault, obstruct, resist, delay, refuse 

boarding to, intimidate, harass or 

interfere with WCPFC observers in the 

performance of their duties, or attempt 

to do any of the same. 

(d) Related observer requirements. 

Observers deployed by NMFS pursuant 

to regulations issued under other 

statutory authorities on vessels used for 

commercial fishing for HMS in the 

Convention Area will be deemed by 

NMFS to have been deployed pursuant 

to this section. 

■ 11. Section 300.216 is added to read 

as follows: 

§ 300.216 Transshipment. 

(a) Transshipment monitoring. 

[Reserved] 

(b) Transshipment restrictions. Fish 

may not be transshipped from a purse 

seine fishing vessel of the United States 

at sea in the Convention Area, and a 

fishing vessel of the United States may 

not be used to receive a transshipment 

of fish from a purse seine fishing vessel 

at sea in the Convention Area. 

■ 12. Section 300.217 is added to read 

as follows: 

§ 300.217 Vessel identification. 

(a) General. (1) A fishing vessel must 

be marked in accordance with the 

requirements of this section in order for 

a WCPFC Area Endorsement to be 

issued for the fishing vessel. 

(2) Any fishing vessel of the United 

States with a WCPFC Area Endorsement 

or for which a WCPFC Area 

Endorsement is required shall be 

marked for identification purposes in 

accordance with this section, and all 

parts of such markings shall be clear, 

distinct, uncovered, and unobstructed. 

(3) Any boat, skiff, or other watercraft 

carried on board the fishing vessel shall 

be marked with the same identification 

markings as required under this section 

for the fishing vessel and shall be 

marked in accordance with this section. 

(b) Marking. (1) Vessels shall be 

marked in accordance with the 

identification requirements of 

§ 300.14(b)(2), and if an IRCS has not 

been assigned to the vessel, then the 

Federal, State, or other documentation 

number used in lieu of the IRCS must 

be preceded by the characters ‘‘USA’’ 

and a hyphen (that is, ‘‘USA-’’). 

(2) With the exception of the vessel’s 

name and hailing port, the marking 

required in this section shall be the only 

vessel identification mark consisting of 

letters and numbers to be displayed on 

the hull and superstructure. 

(c) This section will not apply to 

fishing vessels that are subject to the 

vessel identification requirements of 

§§ 300.173 or 660.704 of this title until 

conflicts between the requirements of 

this section and the requirements of 

those sections are reconciled, and only 

upon publication in the Federal 

Register of a notice or final rule that 

includes a statement to that effect. 

■ 13. Section 300.218 is added to read 

as follows: 

§ 300.218 Reporting and recordkeeping 

requirements. 

(a) Fishing reports.—(1) General. The 

owner or operator of any fishing vessel 

of the United States used for 

commercial fishing for HMS in the 

Pacific Ocean must maintain and report 

to NMFS catch and effort and other 

operational information for all such 

fishing activities. The reports must 

include at a minimum: identification 

information for the vessel; description 

of fishing gear used; dates, times and 

locations of fishing; and species and 

amounts of fish retained and discarded. 

(2) Reporting options. Vessel owners 

and operators shall be deemed to meet 

the recordkeeping and reporting 

requirements of paragraph (a)(1) of this 

section by satisfying all applicable catch 

and effort reporting requirements as 

listed below: 

(i) Western Pacific pelagic fisheries. 

Fishing activities subject to the 

reporting requirements of § 665.14 of 

this title must be maintained and 


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reported in the manner specified in that 

section. 

(ii) West Coast HMS fisheries. Fishing 

activities subject to the reporting 

requirements of § 660.708(a) of this title 

must be maintained and reported in the 

manner specified in that section. 

(iii) Pacific tuna fisheries. Fishing 

activities subject to the reporting 

requirements of § 300.22 must be 

maintained and reported in the manner 

specified in that section. 

(iv) South Pacific tuna fisheries. 

Fishing activities subject to the 

reporting requirements of § 300.34(c)(1) 

must be maintained and reported in the 

manner specified in that section. 

(v) High seas fisheries. Fishing 

activities subject to the reporting 

requirements of § 300.17(a) must be 

maintained and reported in the manner 

specified in § 300.17(a) and (b). 

(vi) Canada albacore fisheries. 

Fishing activities subject to the 

reporting requirements of § 300.174 

must be maintained and reported in the 

manner specified in that section. 

(vii) State-regulated fisheries. Catch 

and effort information for fishing 

activities for which reporting of effort, 

catch, and/or landings is required under 

State law must be maintained and 

reported in the manner specified under 

such State law. 

(viii) Other fisheries. All other fishing 

activities subject to the requirement of 

paragraph (a)(1) of this section must be 

recorded on paper or electronic forms 

specified or provided by the Pacific 

Islands Regional Administrator. Such 

forms will specify the information 

required, which may include: 

Identification information for the vessel; 

description of fishing gear used; dates, 

times and locations of fishing; and 

species and amounts of fish retained 

and discarded. All information specified 

by the Pacific Islands Regional 

Administrator on such forms must be 

recorded on paper or electronically 

within 24 hours of the completion of 

each fishing day. The information 

recorded must, for each fishing day, 

include a dated signature of the vessel 

operator or other type of authentication 

as specified by the Pacific Islands 

Regional Administrator. The vessel 

operator must, unless otherwise 

specified by the Pacific Islands Regional 

Administrator, submit the information 

for each fishing day to the Pacific 

Islands Regional Administrator within 

72 hours of the first landing or port call 

after the fishing day, and must submit 

the information in the manner specified 

by the Pacific Islands Regional 

Administrator. 

(3) Exceptions. (i) Catch and effort 

information for fishing activities that 

take place in waters under State 

jurisdiction must be maintained and 

reported only in cases where the 

reporting of such activity is required 

under State law or under Federal 

regulations at §§ 300.22 and 300.34, and 

§§ 660.708 and 665.14 of this title. 

(ii) Catch and effort information for 

fishing activities that take place in 

waters under Federal jurisdiction 

around American Samoa, Guam and the 

Northern Mariana Islands need not be 

reported under this section unless 

reporting of such activity is required 

under regulations in chapter VI of this 

title. 

(b) Transshipment reports. [Reserved] 

■ 14. Section 300.219 is added to read 

as follows: 

§ 300.219 Vessel monitoring system. 

(a) SAC and VMS Helpdesk contact 

information and business hours. The 

contact information for the SAC for the 

purpose of this section is: 1601 

Kapiolani Blvd., Suite 950, Honolulu, 

HI 96814; telephone: (808) 203–2500; 

facsimile: (808) 203–2599; e-mail: 

pidvms@noaa.gov. The business hours 

of the SAC for the purpose of this 

section are: Monday through Friday, 

except Federal holidays, 8 a.m. to 4:30 

p.m, Hawaii Standard Time. The contact 

information for the NOAA Office of Law 

Enforcement’s VMS Helpdesk for the 

purpose of this section is: telephone: 

(888) 219–9228; e-mail: 

ole.helpdesk@noaa.gov. The business 

hours of the VMS Helpdesk for the 

purpose of this section are: Monday 

through Friday, except Federal holidays, 

7 a.m. to 11 p.m., Eastern Time. 

(b) Applicability. This section applies 

to any fishing vessel of the United States 

with a WCPFC Area Endorsement or for 

which a WCPFC Area Endorsement is 

required. 

(c) Provision of vessel position 

information—(1) VMS unit installation. 

The vessel owner and operator shall 

obtain and have installed on the fishing 

vessel, in accordance with instructions 

provided by the SAC and the VMS unit 

manufacturer, a VMS unit that is typeapproved by NMFS for fisheries 

governed under the Act. The vessel 

owner and operator shall authorize the 

Commission and NMFS to receive and 

relay transmissions from the VMS unit. 

The vessel owner and operator shall 

arrange for a NMFS-approved mobile 

communications service provider to 

receive and relay transmissions from the 

VMS unit to NMFS. NMFS makes 

available lists of type-approved VMS 

units and approved mobile 

communications service providers. 

(2) VMS unit activation. If the VMS 

unit has not yet been activated as 

described in this paragraph, or if the 

VMS unit has been newly installed or 

reinstalled, or if the mobile 

communications service provider has 

changed since the previous activation, 

or if directed by the SAC, the vessel 

owner and operator shall, prior to the 

vessel leaving port: 

(i) Turn on the VMS unit to make it 

operational; 

(ii) Submit a written activation report, 

via mail, facsimile or e-mail, to the SAC, 

that includes: the vessel’s name; the 

vessel’s official number; the VMS unit 

manufacturer and identification 

number; and telephone, facsimile or email contact information for the vessel 

owner or operator; and 

(iii) Receive verbal or written 

confirmation from the SAC that proper 

transmissions are being received from 

the VMS unit. 

(3) VMS unit operation. The vessel 

owner and operator shall continuously 

operate the VMS unit at all times, 

except that the VMS unit may be shut 

down while the vessel is at port or 

otherwise not at sea, provided that the 

owner and operator: 

(i) Prior to shutting down the VMS 

unit, report to the SAC or the NOAA 

Office of Law Enforcement’s VMS 

Helpdesk via facsimile or e-mail, the 

following information: the intent to shut 

down the VMS unit; the vessel’s name; 

the vessel’s official number; and 

telephone, facsimile or e-mail contact 

information for the vessel owner or 

operator; and 

(ii) When turning the VMS unit back 

on, report to the SAC or the NOAA 

Office of Law Enforcement’s VMS 

Helpdesk, via mail, facsimile or e-mail, 

the following information: that the VMS 

unit has been turned on; the vessel’s 

name; the vessel’s official number; and 

telephone, facsimile or e-mail contact 

information for the vessel owner or 

operator; and 

(iii) Prior to leaving port, receive 

verbal or written confirmation from the 

SAC that proper transmissions are being 

received from the VMS unit. 

(4) Failure of VMS unit. If the vessel 

owner or operator becomes aware that 

the VMS unit has become inoperable or 

that transmission of automatic position 

reports from the VMS unit has been 

interrupted, or if notified by NMFS or 

the USCG that automatic position 

reports are not being received from the 

VMS unit or that an inspection of the 

VMS unit has revealed a problem with 

the performance of the VMS unit, the 

vessel owner and operator shall comply 

with the following requirements: 


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(i) If the vessel is at port: The vessel 

owner or operator shall repair or replace 

the VMS unit and ensure it is operable 

before the vessel leaves port. 

(ii) If the vessel is at sea: The vessel 

owner, operator, or designee shall 

contact the SAC by telephone, facsimile, 

or e-mail at the earliest opportunity 

during the SAC’s business hours and 

identify the caller and vessel. The vessel 

operator shall follow the instructions 

provided by the SAC, which could 

include, but are not limited to: ceasing 

fishing, stowing fishing gear, returning 

to port, and/or submitting periodic 

position reports at specified intervals by 

other means; and, repair or replace the 

VMS unit and ensure it is operable 

before starting the next trip. 

(5) Related VMS requirements. 

Installing, carrying and operating a VMS 

unit in compliance with the 

requirements in part 300 of this title, 

part 660 of this title, or part 665 of this 

title relating to the installation, carrying, 

and operation of VMS units shall be 

deemed to satisfy the requirements of 

paragraph (c) of this section, provided 

that the VMS unit is operated 

continuously and at all times while the 

vessel is at sea, the VMS unit is typeapproved by NMFS for fisheries 

governed under the Act, the owner and 

operator have authorized the 

Commission and NMFS to receive and 

relay transmissions from the VMS unit, 

and the specific requirements of 

paragraph (c)(4) of this section are 

complied with. If the VMS unit is 

owned by NMFS, the requirement under 

paragraph (c)(4) of this section to repair 

or replace the VMS unit will be the 

responsibility of NMFS, but the vessel 

owner and operator shall be responsible 

for ensuring that the VMS unit is 

operable before leaving port or starting 

the next trip. 

(d) Costs. The vessel owner and 

operator shall be responsible for all 

costs associated with the purchase, 

installation and maintenance of the 

VMS unit, and for all charges levied by 

the mobile communications service 

provider as necessary to ensure the 

transmission of automatic position 

reports to NMFS as required in 

paragraph (c) of this section. However, 

if the VMS unit is being carried and 

operated in compliance with the 

requirements in part 300 of this title, 

part 660 of this title, or part 665 of this 

title relating to the installation, carrying, 

and operation of VMS units, the vessel 

owner and operator shall not be 

responsible for costs that are the 

responsibility of NMFS under those 

regulations. 

(e) Tampering. The vessel owner and 

operator shall ensure that the VMS unit 

is not tampered with, disabled, 

destroyed, damaged or operated 

improperly, and that its operation is not 

impeded or interfered with. 

(f) Inspection. The vessel owner and 

operator shall make the VMS unit, 

including its antenna, connectors and 

antenna cable, available for inspection 

by authorized officers, by employees of 

the Commission, by persons appointed 

by the Executive Director of the 

Commission for this purpose, and, when 

the vessel is on the high seas in the 

Convention Area, by WCPFC inspectors. 

(g) Access to data. The vessel owner 

and operator shall make the vessel’s 

position data obtained from the VMS 

unit or other means immediately and 

always available for inspection by 

NOAA personnel, USCG personnel, and 

authorized officers, and shall make the 

vessel’s position data for positions on 

the high seas in the Convention Area 

immediately and always available to 

WCPFC inspectors and the Commission. 

(h) Communication devices. (1) To 

facilitate communication with 

management and enforcement 

authorities regarding the functioning of 

the VMS unit and other purposes, the 

vessel operator shall, while the vessel is 

at sea, carry on board and continuously 

monitor a two-way communication 

device that is capable of real-time 

communication with the SAC. The VMS 

unit used to fulfill the requirements of 

paragraph (c) of this section may not be 

used to satisfy this requirement. If the 

device is anything other than a radio, 

the contact number for the device must 

be provided to the Pacific Islands 

Regional Administrator on the 

application form for the WCPFC Area 

Endorsement in accordance with the 

requirements of § 300.212. 

(2) For the purpose of submitting the 

position reports that might be required 

in cases of VMS unit failure under 

paragraph (c)(4)(ii) of this section, the 

vessel operator shall, while the vessel is 

at sea, carry on board a communication 

device capable of transmitting, while 

the vessel is on the high seas in the 

Convention Area, communications by 

telephone, facsimile, e-mail, or radio to 

the Commission, in Pohnpei, 

Micronesia. The VMS unit used to fulfill 

the requirements of paragraph (c) of this 

section may not be used to satisfy this 

requirement. The same communication 

device may be able to satisfy the 

requirements of both this paragraph and 

paragraph (h)(1) of this section. 

■ 15. Section 300.220 is added to read 

as follows: 

§ 300.220 Confidentiality of information. 

(a) Types of information covered. 

NOAA is authorized under the Act and 

other statutes to collect and maintain 

information. This section applies to 

confidential information collected 

under authority of the Act. 

(b) Collection and maintenance of 

information—(1) General. (i) Any 

information required to be submitted to 

the Secretary, a State fishery 

management agency, or a Marine 

Fisheries Commission under the Act 

shall be provided to the Assistant 

Administrator. 

(ii) Any observer information 

collected under the Act shall be 

provided to the Assistant Administrator. 

(iii) Appropriate safeguards as 

specified by NOAA Administrative 

Order (NAO) 216–100 or other NOAA/ 

NMFS internal procedures, apply to the 

collection and maintenance of any 

information collected pursuant to 

paragraphs (b)(1) or (b)(2) of this 

section, whether separated from 

identifying particulars or not, so as to 

ensure their confidentiality. Information 

submitted to the Secretary in 

compliance with this subpart shall not 

be disclosed except as authorized herein 

or by other law or regulation. 

(2) Collection agreements with States 

or Marine Fisheries Commissions. (i) 

The Assistant Administrator may enter 

into an agreement with a State or a 

Marine Fisheries Commission 

authorizing the State or Marine 

Fisheries Commission to collect 

information on behalf of the Secretary. 

(ii) To enter into a cooperative 

collection agreement with a State or a 

Marine Fisheries Commission, NMFS 

must ensure that: 

(A) The State has authority to protect 

the information from disclosure in a 

manner at least as protective as these 

regulations. 

(B) The Marine Fisheries Commission 

has enacted policies and procedures to 

protect the information from public 

disclosure. 

(3) Collection services by observer 

employer/observer provider. The 

Assistant Administrator shall make the 

following determinations before issuing 

a permit or letting a contract or grant to 

an organization that provides observer 

services: 

(i) That the observer employer/ 

observer provider has enacted policies 

and procedures to protect the 

information from public disclosure; 

(ii) That the observer employer/ 

observer provider has entered into an 

agreement with the Assistant 

Administrator that prohibits public 

disclosure and specifies penalties for 

such disclosure; and 


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(iii) That the observer employer/ 

observer provider requires each observer 

to sign an agreement with NOAA/NMFS 

that prohibits public disclosure of 

observer information and specifies 

penalties for such disclosure. 

(c) Access to information—(1) 

General. This section establishes 

procedures intended to manage, 

preserve, and protect the confidentiality 

of information submitted in compliance 

with the Act and its implementing 

regulations. This section applies to 

those persons and organizations deemed 

eligible to access confidential 

information subject to the terms and 

conditions described in this section and 

the Act. All other persons requesting 

access to confidential information 

should follow the procedures set forth 

in the Freedom of Information Act, 5 

U.S.C. 552, 15 CFR parts 15 and 903, 

NAO 205–14, and Department of 

Commerce Administrative Orders 205– 

12 and 205–14, as applicable. Persons 

eligible to access confidential 

information under this section shall 

submit to NMFS a written request with 

the following information: 

(i) The specific types of information 

requested; 

(ii) The relevance of the information 

to requirements of the Act; 

(iii) The duration of time that access 

will be required: continuous, infrequent, 

or one-time; and 

(iv) An explanation of why the 

availability of information in aggregate 

or summary form from other sources 

would not satisfy the requested needs. 

(2) Federal employees. Confidential 

information will only be accessible to 

the following: 

(i) Federal employees who are 

responsible for administering, 

implementing, or enforcing the Act. 

Such persons are exempt from the 

provisions of paragraph (c)(1) of this 

section. 

(ii) NMFS employees responsible for 

the collection, processing, and storage of 

the information or performing research 

that requires access to confidential 

information. Such persons are exempt 

from the provisions of paragraph (c)(1) 

of this section. 

(iii) Other NOAA employees on a 

demonstrable need-to-know basis. 

(iv) Persons that need access to 

confidential information to perform 

functions authorized under a Federal 

contract, cooperative agreement, or 

grant awarded by NOAA/NMFS. 

(3) Commission. (i) Confidential 

information will be subject to disclosure 

to the Commission, but only if: 

(A) The information is required to be 

submitted to the Commission under the 

requirements of the WCPF Convention 

or the decisions of the Commission; 

(B) The provision of such information 

is in accord with the requirements of the 

Act, the WCPF Convention, and the 

decisions of the Commission, including 

any procedures, policies, or practices 

adopted by the Commission relating to 

the receipt, maintenance, protection or 

dissemination of information by the 

Commission; and 

(C) The provision of such information 

is in accord with any agreement 

between the United States and the 

Commission that includes provisions to 

prevent public disclosure of the identity 

or business of any person. 

(ii) The provisions of paragraph (c)(1) 

of this section do not apply to the 

release of confidential information to 

the Commission. 

(4) State employees. Confidential 

information may be made accessible to 

a State employee only by written 

request and only upon the 

determination by NMFS that at least one 

of the following conditions is met: 

(i) The employee has a need for 

confidential information to further the 

Department of Commerce’s mission, and 

the State has entered into a written 

agreement between the Assistant 

Administrator and the head of the 

State’s agency that manages marine and/ 

or anadromous fisheries. The agreement 

shall contain a finding by the Assistant 

Administrator that the State has 

confidentiality protection authority 

comparable to the Act and that the State 

will exercise this authority to prohibit 

public disclosure of the identity or 

business of any person. 

(ii) The employee enforces the Act or 

fishery management plans prepared 

under the authority of the MagnusonStevens Conservation and Management 

Act, and the State for which the 

employee works has entered into a 

fishery enforcement agreement with the 

Secretary and the agreement is in effect. 

(5) Marine Fisheries Commission 

employees. Confidential information 

may be made accessible to Marine 

Fisheries Commission employees only 

upon written request of the Marine 

Fisheries Commission and only if the 

request demonstrates a need for 

confidential information to further the 

Department of Commerce’s mission, and 

the executive director of the Marine 

Fisheries Commission has entered into 

a written agreement with the Assistant 

Administrator. The agreement shall 

contain a finding by the Assistant 

Administrator that the Marine Fisheries 

Commission has confidentiality 

protection policies and procedures to 

protect from public disclosure 

information that would reveal the 

identity or business of any person. 

(6) Homeland and national security 

activities. Confidential information may 

be made accessible to Federal 

employees for purposes of promoting 

homeland security or national security 

at the request of another Federal agency 

only if: 

(i) Providing the information 

promotes homeland security or national 

security purposes including the USCG’s 

homeland security missions as defined 

in section 888(a)(2) of the Homeland 

Security Act of 2002 (6 U.S.C. 468(a)(2)); 

and 

(ii) The requesting agency has entered 

into a written agreement with the 

Assistant Administrator. The agreement 

shall contain a finding by the Assistant 

Administrator that the requesting 

agency has confidentiality policies and 

procedures to protect the information 

from public disclosure. 

(7) Observer and observer employer/ 

observer provider. Confidential 

information used for purposes other 

than those contained in this subpart or 

in part 600 of this title may only be used 

by observers and observer employers/ 

observer providers in order: 

(i) To adjudicate observer 

certifications; 

(ii) To allow the sharing of observer 

information among the observers and 

between observers and observer 

employers/observer providers as 

necessary to train and prepare observers 

for deployments on specific vessels; or 

(iii) To validate the accuracy of the 

observer information collected. 

(8) Persons having access to 

confidential information may be subject 

to criminal and civil penalties for 

unauthorized use or disclosure of 

confidential information. See 18 U.S.C. 

1905, 16 U.S.C. 1857, and NOAA/NMFS 

internal procedures, including NAO 

216–100. 

(d) Control system. (1) The Assistant 

Administrator maintains a control 

system to protect the identity or 

business of any person who submits 

information in compliance with any 

requirement or regulation under the Act. 

The control system: 

(i) Identifies those persons who have 

access to the information; 

(ii) Contains procedures to limit 

access to confidential information to 

authorized users; and 

(iii) Provides handling and physical 

storage protocols for safeguarding of the 

information. 

(2) This system requires that all 

persons who have authorized access to 

the information be informed of the 

confidentiality of the information. These 

persons, with the exception of 


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employees and contractors of the 

Commission, are required to sign a 

statement that they: 

(i) Have been informed that the 

information is confidential; and 

(ii) Have reviewed and are familiar 

with the procedures to protect 

confidential information. 

(e) Release of information. (1) The 

Assistant Administrator will not 

disclose to the public any confidential 

information, except: 

(i) When the Secretary has obtained 

from the person who submitted the 

information an authorization to release 

the information to persons for reasons 

not otherwise provided for in this 

subpart. In situations where a person 

provides information through a second 

party, both parties are considered joint 

submitters of information and either 

party may request a release. The 

authorization to release such 

information will require: 

(A) A written statement from the 

person(s) who submitted the 

information authorizing the release of 

the submitted information; and 

(B) A finding by the Secretary that 

such release does not violate other 

requirements of the Act or other 

applicable laws. 

(ii) Observer information as 

authorized by a fishery management 

plan (prepared under the authority of 

the Magnuson-Stevens Fishery 

Conservation and Management Act) or 

regulations under the authority of the 

North Pacific Council to allow 

disclosure of observer information to the 

public of weekly summary bycatch 

information identified by vessel or for 

haul-specific bycatch information 

without vessel identification. 

(iii) When such information is 

required to be submitted for any 

determination under a limited access 

program. 

(iv) When required by a court order. 

(2) All requests from the public for 

confidential information will be 

processed in accordance with the 

requirements of 5 U.S.C. 552a, 15 CFR 

parts 4 and 903, NAO 205–14, and 

Department of Commerce 

Administrative Orders DAO 205–12 and 

DAO 205–14. Nothing in this section is 

intended to confer any right, claim, or 

entitlement to obtain access to 

confidential information not already 

established by law. 

(3) NMFS does not release or allow 

access to confidential information in its 

possession to members of advisory 

groups of the Regional Fishery 

Management Councils established under 

the Magnuson-Stevens Fishery 

Conservation and Management Act, 

except as provided by law. 

■ 16. Section 300.221 is added to read 

as follows: 

§ 300.221 Facilitation of enforcement and 

inspection. 

In addition to the facilitation of 

enforcement provisions of § 300.5, the 

following requirements apply to this 

subpart. 

(a) A fishing vessel of the United 

States with a WCPFC Area Endorsement 

or for which a WCPFC Area 

Endorsement is required, including the 

vessel’s operator and each member of 

the vessel’s crew shall, when in the 

Convention Area, be subject to the 

following requirements: 

(1) The Federal Certificate of 

Documentation or State or other 

documentation for the vessel, or a copy 

thereof, shall be carried on board the 

vessel. Any license, permit or other 

authorization to use the vessel to fish, 

retain fish, transship fish, or land fish 

issued by a nation or political entity 

other than the United States, or a copy 

thereof, shall be carried on board the 

vessel. These documents shall be made 

available for inspection by any 

authorized officer. If the vessel is on the 

high seas, the above-mentioned licenses, 

permits, and authorizations shall also be 

made available for inspection by any 

WCPFC inspector. If the vessel is in an 

area under the jurisdiction of a member 

of the Commission other than the 

United States, they shall be made 

available for inspection by any 

authorized enforcement official of that 

member. 

(2) For the purpose of facilitating 

communication with the fisheries 

management, surveillance and 

enforcement authorities of the members 

of the Commission, the operator shall 

ensure the continuous monitoring of the 

international safety and calling radio 

frequency 156.8 MHz (Channel 16, 

VHF–FM) and, if the vessel is equipped 

to do so, the international distress and 

calling radio frequency 2.182 MHz (HF). 

(3) The operator shall ensure that an 

up-to-date copy of the International 

Code of Signals (INTERCO) is on board 

and accessible at all times. 

(4) When engaged in transshipment 

on the high seas or in an area under the 

jurisdiction of a member of the 

Commission other than the United 

States, the operator and crew shall: 

(i) Provide any WCPFC transshipment 

monitor with full access to, and use of, 

facilities and equipment which such 

authorized person may determine is 

necessary to carry out his or her duties 

to monitor transshipment activities, 

including full access to the bridge, fish 

on board, and all areas which may be 

used to hold, process, weigh and store 

fish, and full access to the vessel’s 

records, including its log and 

documentation for the purpose of 

inspection and photocopying; 

(ii) Allow and assist any WCPFC 

transshipment monitor to collect and 

remove samples and gather any other 

information required to fully monitor 

transshipment activities. 

(iii) Not assault, obstruct, resist, delay, 

refuse boarding to, intimidate, harass, 

interfere with, unduly obstruct or delay 

any WCPFC transshipment monitor in 

the performance of such person’s duties, 

or attempt to do any of the same. 

(b) The operator and crew of a fishing 

vessel of the United States, when on the 

high seas in the Convention Area, shall 

be subject to the following 

requirements: 

(1) The operator and crew shall 

immediately comply with instructions 

given by an officer on board a WCPFC 

inspection vessel to move the vessel to 

a safe location and/or to stop the vessel, 

provided that the officer has, prior to 

the issuance of such instructions: 

(i) Provided information identifying 

his or her vessel as a WCPFC inspection 

vessel, including its name, registration 

number, IRCS and contact frequency; 

and 

(ii) Communicated to the vessel 

operator his or her intention to board 

and inspect the vessel under the 

authority of the Commission and 

pursuant to the boarding and inspection 

procedures adopted by the Commission. 

(2) The operator and crew shall accept 

and facilitate prompt and safe boarding 

by any WCPFC inspector, provided that 

an officer on board the WCPFC 

inspection vessel has, prior to such 

boarding: 

(i) Provided information identifying 

his or her vessel as a WCPFC inspection 

vessel, including its name, registration 

number, IRCS and contact frequency; 

and 

(ii) Communicated to the vessel 

operator an intention to board and 

inspect the vessel under the authority of 

the Commission and pursuant to the 

boarding and inspection procedures 

adopted by the Commission. 

(3) Provided that the WCPFC 

inspector has presented to the vessel 

operator his or her identity card 

identifying him or her as an inspector 

authorized to carry out boarding and 

inspection procedures under the 

auspices of the Commission, and a copy 

of the text of the relevant conservation 

and management measures in force 

pursuant to the WCPF Convention in 

the relevant area of the high seas, the 

operator and crew shall: 

(i) Cooperate with and assist any 

WCPFC inspector in the inspection of 


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the vessel, including its authorizations 

to fish, gear, equipment, records, 

facilities, fish and fish products and any 

relevant documents necessary to verify 

compliance with the conservation and 

management measures in force pursuant 

to the WCPF Convention; 

(ii) Allow any WCPFC inspector to 

communicate with the crew of the 

WCPFC inspection vessel, the 

authorities of the WCPFC inspection 

vessel and the authorities of the vessel 

being inspected; 

(iii) Provide any WCPFC inspector 

with reasonable facilities, including, 

where appropriate, food and 

accommodation; and 

(iv) Facilitate safe disembarkation by 

any WCPFC inspector. 

(4) If the operator or crew refuses to 

allow a WCPFC inspector to board and 

inspect the vessel in the manner 

described in this paragraph, they shall 

offer to the WCPFC inspector an 

explanation of the reason for such 

refusal. 

(5) The operator and crew shall not 

assault, obstruct, resist, delay, refuse 

boarding to, intimidate, harass, interfere 

with, unduly obstruct or delay any 

WCPFC inspector in the performance of 

such person’s duties, or attempt to do 

any of the same. 

(c) When a fishing vessel of the 

United States that is used for 

commercial fishing for HMS is in the 

Convention Area and is either on the 

high seas without a valid WCPFC Area 

Endorsement or is in an area under the 

jurisdiction of a nation other than the 

United States without an authorization 

by that nation to fish in that area, all the 

fishing gear and fishing equipment on 

the fishing vessel shall be stowed in a 

manner so as not to be readily available 

for fishing, specifically: 

(1) If the fishing vessel is used for 

purse seining and equipped with purse 

seine gear, the boom must be lowered as 

far as possible so that the vessel cannot 

be used for fishing but so that the skiff 

is accessible for use in emergency 

situations; the helicopter, if any, must 

be tied down; and the launches must be 

secured. 

(2) If the fishing vessel is used for 

longlining and equipped with longline 

gear, the branch or dropper lines and 

floats used to buoy the mainline must be 

stowed and not available for immediate 

use, and any power-operated mainline 

hauler on deck must be covered in such 

a manner that it is not readily available 

for use. 

(3) If the fishing vessel is used for 

trolling and equipped with troll gear, no 

lines or hooks may be placed in the 

water; if outriggers are present on the 

vessel, they must be secured in a 

vertical position; if any power-operated 

haulers are located on deck they must 

be covered in such a manner that they 

are not readily available for use. 

(4) If the fishing vessel is used for 

pole-and-line fishing and equipped with 

pole-and-line gear, any poles rigged 

with lines and hooks must be stowed in 

such a manner that they are not readily 

available for use. 

(5) For any other type of fishing 

vessel, all the fishing gear and 

equipment on the vessel must be stowed 

in a manner so as not to be readily 

available for use. 

(d) For the purpose of this section, the 

meaning of transshipment does not 

include transfers that exclusively 

involve fish that have been previously 

landed and processed. 

■ 17. In § 300.222, paragraphs (a) 

through (u) are added to read as follows: 

§ 300.222 Prohibitions. 

* * * * * 

(a) Fail to obtain and have on board 

a fishing vessel a valid WCPFC Area 

Endorsement as required in § 300.212. 

(b) Fail to report a change in the 

information required in an application 

for a WCPFC Area Endorsement as 

required in § 300.212(g). 

(c) Fail to provide information on 

vessels and fishing authorizations or fail 

to report changes in such information as 

required in § 300.213. 

(d) Fish for, retain on board, or land 

fish, including HMS, in areas under the 

jurisdiction of a nation other than the 

United States without authorization by 

such nation to do so, as provided in 

§ 300.214(a)(1) and (b)(1). 

(e) Operate a fishing vessel in 

violation of, or fail to ensure the vessel 

crew complies with, the applicable 

national laws of a member of the 

Commission other than the United 

States, including any laws related to 

carrying vessel observers or the 

operation of VMS units, as provided in 

§ 300.214(a)(2) and (b)(2). 

(f) Fail to carry, allow on board, or 

assist a WCPFC observer as required in 

§ 300.215. 

(g) Assault, obstruct, resist, delay, 

refuse boarding to, intimidate, harass, or 

interfere with a WCPFC observer, or 

attempt to do any of the same, or fail to 

provide a WCPFC observer with food, 

accommodation or medical facilities, as 

required in § 300.215. 

(h) Offload, receive, or load fish from 

a purse seine vessel at sea in the 

Convention Area, in contravention of 

§ 300.216. 

(i) Fail to mark a fishing vessel or a 

boat, skiff, or other watercraft on board 

the fishing vessel as required in 

§ 300.217, or remove, obscure, or 

obstruct such markings, or attempt to do 

so. 

(j) Fail to maintain and report catch 

and effort information or transshipment 

information as required in § 300.218. 

(k) Fail to install, activate, or operate 

a VMS unit as required in § 300.219(c). 

(l) In the event of VMS unit failure or 

interruption, fail to repair or replace a 

VMS unit, fail to notify the SAC and 

follow the instructions provided, or 

otherwise fail to act as provided in 

§ 300.219(c)(4). 

(m) Disable, destroy, damage or 

operate improperly a VMS unit installed 

under § 300.219, or attempt to do any of 

the same, or fail to ensure that its 

operation is not impeded or interfered 

with, as provided in § 300.219(e). 

(n) Fail to make a VMS unit installed 

under § 300.219 or the position data 

obtained from it available for 

inspection, as provided in § 300.219(f) 

and (g). 

(o) Fail to carry on board and monitor 

communication devices as required in 

§ 300.219(h). 

(p) Fail to carry on board and make 

available the required vessel 

documentation and authorizations as 

required in § 300.221(a)(1). 

(q) Fail to continuously monitor the 

specified radio frequencies as required 

in § 300.221(a)(2). 

(r) Fail to carry on board, and keep 

accessible, an up-to-date copy of the 

International Code of Signals as 

required in § 300.221(a)(3). 

(s) Fail to provide access to, or fail to 

allow and assist, a WCPFC 

transshipment monitor as required in 

§ 300.221(a)(4). 

(t) Fail to comply with the 

instructions of, or fail to accept and 

facilitate prompt and safe boarding by, 

a WCPFC inspector, or fail to cooperate 

and assist a WCPFC inspector in the 

inspection of a fishing vessel, as 

provided in § 300.221(b). 

(u) Fail to stow fishing gear or fishing 

equipment as required in § 300.221(c). 

* * * * * 

[FR Doc. 2010–1087 Filed 1–20–10; 8:45 am] 

BILLING CODE 3510–22–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1115 

Guidelines and Requirements for 

Mandatory Recall Notices 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Final rule. 


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