International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Initial Implementation of the Western and Central Pacific Fisheries Convention, 3335-3355 [2010-1087]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Rules and Regulations]
[Pages 3335-3355]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1087]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 300

[Docket No. 070717350-9936-02]
RIN 0648-AV63


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Initial Implementation of the Western and 
Central Pacific Fisheries Convention

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues regulations under authority of the Western and 
Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act), which authorizes the Secretary of Commerce to 
promulgate regulations needed to carry out the obligations of the 
United States under the Convention on the Conservation and Management 
of Highly Migratory Fish Stocks in the Western and Central Pacific 
Ocean (Convention), including implementing the decisions of the 
Commission for the Conservation and Management of Highly Migratory Fish 
Stocks in the Western and Central Pacific Ocean (WCPFC). The 
regulations include requirements related to permitting, vessel 
monitoring systems, vessel observers, vessel markings, reporting and 
recordkeeping, at-sea transshipment, and boarding and inspection on the 
high seas, among others. NMFS has determined that this action is 
necessary for the United States to satisfy its international 
obligations under the Convention, to which it is a Contracting Party. 
It will have the effect of requiring that all relevant U.S. fishing 
vessels are operated in conformance with the provisions of the 
Convention.

DATES: This final rule is effective February 22, 2010.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the regulatory impact review (RIR) and 
environmental assessment (EA), as well as the proposed rule, are 
available via the Federal e-Rulemaking portal, at https://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 https://www.gpoaccess.gov/fr.

Background

    On May 22, 2009, NMFS published a proposed rule in the Federal 
Register (74 FR 23965) that would add regulations at 50 CFR part 300, 
subpart O, in order to implement certain provisions of the Convention 
and decisions of the WCPFC. The proposed rule was open to public 
comment through June 22, 2009.
    This final rule is implemented under authority of the WCPFC 
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the WCPFC. The authority to promulgate regulations has 
been delegated to NMFS.
    The proposed rule includes additional background information, 
including information on the Convention and the WCPFC, the 
international obligations of the United States under the Convention, 
and the basis for the proposed regulations.

New Requirements

    This final rule establishes the following requirements:

1. Authorization To Fish

    Owners or operators of U.S. vessels used for commercial fishing for 
highly migratory species (HMS) on the high seas in the Convention Area 
will be required to obtain a new NMFS-issued fishing authorization, 
called a ``WCPFC Area Endorsement.'' The definition of fishing will 
include, consistent with its definition under the WCPFC Implementation 
Act, receiving fish from another fishing vessel and bunkering or 
otherwise supplying or supporting a vessel that engages in fishing. 
Thus, carriers that receive HMS from another vessel, vessels that 
bunker vessels used to fish for HMS, and vessels that engage in 
operations at sea directly in support of, or in preparation for, 
fishing or transshipping by other vessels will also be subject to this 
and other requirements of the final rule. This new authorization will 
be issued by the Regional Administrator of NMFS, Pacific Islands 
Region, supplemental to, and as an endorsement on, the permits issued 
under the authority of the High Seas Fishing Compliance Act of 1995 
(HSFCA; 16 U.S.C. 5501 et seq.) (hereafter, ``high seas fishing 
permits;'' see 50 CFR 300.13). The prerequisites to obtaining a WCPFC 
Area Endorsement will be: (1) Having a valid high seas fishing permit 
(or simultaneously applying for one); (2) submitting a complete 
application (see the next item, ``vessel information''); and (3) paying 
the required administrative fee. The application form will be designed 
as a supplement to the application for a high seas fishing permit. The 
WCPFC Area Endorsement will become void upon expiration, suspension, or 
revocation of the underlying high seas fishing permit. The WCPFC Area 
Endorsement is also subject to suspension or revocation independent of 
the high seas fishing permit. Holding a WCPFC Area Endorsement will 
trigger a number of

[[Page 3336]]

other requirements, as described in the elements that follow.

2. Vessel Information

    Vessel owners and operators that apply for WCPFC Area Endorsements 
will be required to submit to NMFS, in their application forms for 
WCPFC Area Endorsements, specified information about the vessel and its 
operator (i.e., the master on board and in charge of the vessel) that 
is not already collected via the high seas fishing permit application. 
This information includes the name and nationality of the vessel 
operator (or operators); all communication types used on the vessel 
(e.g., single sideband radio, voice Inmarsat, fax Inmarsat, e-mail 
Inmarsat, telex Inmarsat, or other type of satellite telephone), along 
with the communication service used and the identifying/contact number 
for each; the fishing methods used or intended to be used; the vessel's 
fish hold capacity, expressed in terms of either cubic meters or short 
tons; and the vessel's refrigeration and freezer capacity, including 
the types of refrigeration and freezer systems on board, the number of 
refrigeration and freezer units of each type, and the total 
refrigerating or freezing capacity of each type of system.
    In addition, a bow-to-stern side-view photograph of the vessel that 
shows the vessel in its current form and appearance and that is no 
older than five years will have to be submitted to NMFS. The photograph 
can be in either paper or electronic format and must meet certain 
minimum specifications in terms of its size and resolution and the 
legibility of the vessel markings. Although the international radio 
call sign assigned to a given vessel is already collected in high seas 
fishing permit applications, an indication of whether or not an 
international radio call sign has been assigned to the vessel, and if 
so, the call sign itself, will have to be submitted to NMFS by 
applicants for WCPFC Area Endorsements. This is because of the 
importance under the Convention of a vessel's international radio call 
sign (e.g., see paragraph below on ``vessel identification'') and NMFS' 
need to verify that the collected information is accurate. WCPFC Area 
Endorsement holders will have to submit to NMFS any subsequent changes 
to the submitted information within 15 days of the change.
    In addition, owners or operators of any U.S. vessel used for 
fishing for HMS in the Convention Area in areas under the jurisdiction 
of any nation other than the United States (i.e., vessels for which a 
WCPFC Area Endorsement will not necessarily be required) will be 
required to submit to NMFS information about the vessel, its owners and 
operators and any fishing authorizations issued by such other nations. 
Specifically, all the information specified in the application for high 
seas fishing permits and in the application for WCPFC Area Endorsements 
will be required, as well as, for each fishing authorization issued by 
a nation or political entity other than the United States, the name of 
the nation or political entity, the name of the issuing authority, the 
authorization type, the period of validity, the specific activities 
authorized, the species for which fishing is authorized, the areas in 
which fishing is authorized, and any unique identifiers assigned to the 
authorization. Copies of any such fishing authorizations will also have 
to be submitted to NMFS. This information will be collected via a new 
form (hereafter, ``Foreign EEZ Form'') designed for this purpose, and 
vessel owners/operators will be required to submit to NMFS any 
subsequent changes to the submitted information within 15 days of the 
change.
    The collected information referred to above will be incorporated by 
NMFS into a record of U.S. fishing vessels authorized to be used for 
commercial fishing for HMS in the Convention Area beyond areas of U.S. 
jurisdiction. In accordance with the Convention, NMFS will keep this 
record updated and share it with the WCPFC, which will combine it with 
the records of its other Members and Cooperating Non-Members and make 
it publicly available via its Web site and other means.

3. Vessel Monitoring System

    Owners and operators of vessels with WCPFC Area Endorsements will 
be required to have installed, activate, carry and operate vessel 
monitoring system (VMS) units (also known as ``mobile transmitting 
units'') that are type-approved by NMFS, and authorize the WCPFC and 
NMFS to receive and relay transmissions (also called ``position 
reports'') from the VMS unit to the WCPFC and to NMFS. The WCPFC and 
NMFS will use the position reports as part of their respective VMS. 
Activation of a VMS unit will be required any time the unit is 
installed or reinstalled, any time the mobile communications service 
provider has changed, and any time directed by NMFS. Activation will 
involve submitting to NMFS a report (``activation report'') via mail, 
facsimile or e-mail with information about the vessel, its owner or 
operator, and the VMS unit, as well as receiving confirmation from NMFS 
that the VMS unit is transmitting position reports properly. The VMS 
unit will have to be turned on and operating (i.e., transmitting 
automated position reports) at all times while the vessel is at sea, 
both inside and outside the Convention Area. The VMS unit may be turned 
off while the vessel is in port, but only if the vessel operator 
notifies NMFS via mail, facsimile or e-mail prior to such shut-down. In 
such cases, NMFS must also be notified when the VMS unit is 
subsequently turned back on (these two types of notifications are 
called ``on/off reports''), and the vessel operator must receive 
confirmation from NMFS that the VMS unit is functioning properly prior 
to leaving port. In the case of failure of the VMS unit while at sea, 
the vessel operator will be required to contact NMFS and follow the 
instructions provided by NMFS, which could include, among other 
actions: Submitting position reports at specified intervals by other 
means, ceasing fishing, stowing fishing gear, and/or returning to port; 
and repairing or replacing the VMS unit and ensuring it is operable 
before starting the next trip. To facilitate communication with 
management and enforcement authorities about the functioning of the VMS 
unit and for other purposes, operators of vessels with WCPFC Area 
Endorsements will be required to carry on board and continuously 
monitor while at sea a two-way communication device capable of real-
time communication with NMFS in Honolulu. For the purpose of submitting 
position reports that might be required in the case of VMS unit 
failure, vessel operators must also carry on board a communication 
device capable of transmitting communications by telephone, facsimile, 
e-mail, or radio to the WCPFC in Pohnpei, Micronesia, while the vessel 
is on the high seas in the Convention Area.
    The vessel owner and operator will be responsible for all costs 
associated with the purchase, installation and maintenance of the VMS 
unit, and for all charges levied by the mobile communications service 
provider as necessary to ensure the transmission of automatic position 
reports to NMFS. However, if the VMS unit is being carried and operated 
in compliance with the requirements in 50 CFR parts 300, 660, or 665 
relating to the installation, carrying, and operation of VMS units, the 
vessel owner and operator will not be responsible for costs that are 
the responsibility of NMFS under those regulations. In addition, the 
vessel owner and operator will not be responsible for the costs of 
transmitting the automatic position reports to the WCPFC.

[[Page 3337]]

    NMFS publishes separately type-approval lists of VMS units. The 
current type-approval lists can be obtained from the NOAA Office of Law 
Enforcement, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910; 
by telephone at 888-210-9288; or by fax at 301-427-0049.
    This final rule is worded so as to avoid duplication with other VMS 
requirements, such as those established under the Magnuson-Stevens 
Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq.) 
and the South Pacific Tuna Act of 1988 (SPTA; 16 U.S.C. 973-973r). 
Compliance with the existing VMS requirements at 50 CFR parts 300, 660, 
and 665 will satisfy this new requirement, provided that the VMS unit 
is type-approved by NMFS specifically for fisheries governed under the 
WCPFC Implementation Act, the VMS unit is operated continuously at all 
times while the vessel is at sea, the vessel owner and operator have 
authorized the WCPFC and NMFS to receive and relay transmissions from 
the VMS unit, and the requirements in case of VMS unit failure are 
followed.

4. Vessel Observer Program

    The operator of a vessel with a WCPFC Area Endorsement will be 
required to accept on board and accommodate observers deployed as part 
of the WCPFC ``Regional Observer Programme'' (WCPFC ROP) on fishing 
trips that are partially or fully in the Convention Area. Such 
observers include persons designated by the WCPFC Secretariat, by the 
United States or by other Members of the WCPFC. Persons will be 
designated as WCPFC observers by the United States or other WCPFC 
Members only if the national or sub-regional observer program that 
deploys such observers has been authorized by the WCPFC to be a part of 
the WCPFC ROP. Once an observer program of NMFS is determined by the 
WCPFC to meet specified minimum standards and incorporated into the 
WCPFC ROP, relevant data collected in the NMFS program will be 
submitted to the WCPFC and maintained and used by the WCPFC as data in 
its larger WCPFC ROP.
    The preamble to the proposed rule inaccurately stated that the 
observer requirements would also apply to vessels used in areas under 
the jurisdiction of another Member of the WCPFC. This final rule 
clarifies that the observer requirements apply only to vessels that 
have, or are required to have, WCPFC Area Endorsements.
    It is anticipated that the NMFS observer program operating out of 
Honolulu, Hawaii, and Pago Pago, American Samoa, will be among the 
first national observer programs to be authorized to be part of the 
WCPFC ROP. The NMFS observer program currently has interim 
authorization until July 1, 2012, and full authorization is anticipated 
after a successful audit of the program. Accordingly, NMFS expects 
there to be little, if any, change in the placement of observers on 
vessels in the longline fleets based in Hawaii and American Samoa. The 
WCPFC Secretariat may place an occasional observer as part of an 
auditing process to ensure that national and sub-regional observer 
programs are operating up to WCPFC standards.
    It is also anticipated that U.S. purse seine vessels operating 
under the SPTA will continue to carry observers from the Pacific 
Islands Forum Fisheries Agency (FFA) observer program (a sub-regional 
observer program). If the FFA is unable to provide observers to meet 
increased coverage levels mandated by the WCPFC, those vessels may make 
other arrangements to obtain WCPFC-approved observers.
    The responsibilities of vessel operators and crew members with 
respect to observers will include allowing and assisting observers to 
do the following: embark and disembark at agreed times and places; have 
access to and use of all facilities and equipment on board that are 
necessary to conduct observer duties; remove samples; and carry out all 
duties safely. The vessel operator also will be responsible for 
providing observers, while on board the vessel, with food, 
accommodation and medical facilities of a reasonable standard 
equivalent to those normally available to an officer on board the 
vessel. In the case of longline vessels in the Hawaii and American 
Samoa fleets, however, costs incurred for providing subsistence for 
NMFS observers will be eligible for reimbursement, as currently 
provided at 50 CFR Part 665.

5. Vessel Identification

    Vessels with WCPFC Area Endorsements will be required to be marked 
in accordance with the Convention's requirements, which are based on 
the FAO Standard Specifications for the Marking and Identification of 
Fishing Vessels. Specifically, if assigned an international radio call 
sign (IRCS), the port and starboard sides of a vessel's hull or 
superstructure, as well as a deck, will have to be marked with the 
IRCS; if not assigned an IRCS, they will have to be marked with the 
vessel's official number (i.e., USCG documentation number or state or 
tribal registration number), preceded by the characters ``USA'' and a 
hyphen. In both cases, the specified marking will be the only allowable 
marking on the hull or superstructure apart from the vessel's name and 
hailing port. The markings will have to be placed so that they are 
clear, distinct, uncovered, and unobstructed. Any boats, skiffs, or 
other watercraft that are carried on board the vessel also will have to 
be marked with the same identifier as the fishing vessel. For some 
affected vessels, this marking requirement will conflict with other 
existing vessel marking requirements, such as those at 50 CFR 300.14 
(under the HSFCA; applicable to vessels used for fishing on the high 
seas), 50 CFR 300.173 (under the legislation implementing the U.S.-
Canada Albacore Treaty; applicable to vessels used for fishing under 
that treaty), 50 CFR 660.704 (under the MSA; applicable to vessels in 
West Coast HMS fisheries), and 50 CFR 665.16 (under the MSA; applicable 
to vessels in western Pacific fisheries). Accordingly, with respect to 
the vessel identification requirements at 50 CFR 300.14, this final 
rule will slightly modify those requirements to make them consistent 
with this new requirement. With respect to the vessel identification 
requirements at 50 CFR 665.16, NMFS has issued a proposed rule (74 FR 
34707; July 17, 2009) to revise those requirements such that they do 
not conflict with the requirements of this final rule. NMFS anticipates 
issuing the final rule for that action nearly concurrently with this 
final rule, in which case there will be no conflict. With respect to 
the vessel identification requirements at 50 CFR 300.173 and 660.704, 
no regulatory action to revise those requirements has been undertaken 
to date, so the vessel identification requirements in this final rule 
are written such that they will not apply to fishing vessels subject to 
the requirements of either 50 CFR 300.173 or 660.704 until the 
conflicts have been reconciled and a notice to that effect has been 
published in the Federal Register.

6. Transshipment Restrictions

    Offloading fish from a U.S. purse seine vessel or using a U.S. 
fishing vessel to receive fish from a purse seine vessel at sea in the 
Convention Area will be prohibited. Transshipping at sea is already 
regulated for U.S. purse seine vessels licensed under the SPTA.

7. Reporting and Recordkeeping

    The owner or operator of any U.S. vessel used for commercial 
fishing for HMS anywhere in the Pacific Ocean will be required to 
maintain and submit to NMFS information on fishing effort and catch. 
The final rule was developed to avoid duplication with other effort

[[Page 3338]]

and catch reporting requirements, particularly those established under 
the MSA, the HSFCA, the Tuna Conventions Act of 1950 (16 U.S.C. 951-961 
et seq.), the SPTA, and the implementing legislation for the U.S.-
Canada Albacore Treaty, as well as relevant State reporting 
requirements. Specifically, compliance with other existing reporting 
requirements will satisfy the new reporting requirement established in 
this final rule. The main effect of these new reporting requirements is 
to collect fishing effort and catch information under the authority of 
the WCPFC Implementation Act, which will enable NMFS to meet the 
reporting requirements of the WCPFC in accordance with the Convention 
and the decisions of the WCPFC. Confidentiality of information will be 
protected and handled by NOAA as required under U.S. laws, including 
the WCPFC Implementation Act and the regulations established in this 
final rule (see element 10 below). Once the information is submitted by 
NOAA to the WCPFC, it will be handled in accordance with policies and 
procedures adopted by the WCPFC.

8. Compliance With the Laws of Other Nations

    A vessel with a WCPFC Area Endorsement will be prohibited from 
being used for fishing in areas under the jurisdiction of another 
nation unless it holds any license, permit or authorization that may be 
required by such nation to do so. When a vessel with a WCPFC Area 
Endorsement operates in the Convention Area in areas under the 
jurisdiction of a Member of the WCPFC other than the United States, it 
will have to be operated in compliance with the laws of that Member.
    Additionally, the owner and operator of any U.S. fishing vessel 
used in the Convention Area in an area under the jurisdiction of 
another Member of the WCPFC, if used for fishing for, retaining on 
board or landing HMS, will be required to comply with the relevant laws 
of that Member, including any laws related to the use of VMS units.
    It will be the responsibility of vessel owners and operators to 
ascertain the applicable laws and requirements of WCPFC members.

9. Facilitation of Enforcement and Inspection

    The operator and crew of a vessel with a WCPFC Area Endorsement, 
when in the Convention Area, will be subject to the following 
requirements:
     Carry on board any fishing authorizations issued by 
another nation or political entity, or copies thereof, and make them 
available to specified authorities, depending on the area of 
jurisdiction the vessel is in;
     Continuously monitor the international safety and calling 
radio frequency (156.8 MHz; Channel 16, VHF-FM) and, if equipped to do 
so, the international distress and calling radio frequency (2.182 MHz);
     Carry on board a copy of the International Code of 
Signals; and
     When engaged in transshipment, allow and assist 
transshipment monitors authorized by the WCPFC (if on the high seas) or 
other Members of the WCPFC (if within their areas of jurisdiction) to 
inspect the vessel and gather information and samples.
    In addition, the operator of any U.S. fishing vessel that is used 
for commercial fishing for HMS, when present in the Convention Area in 
an area in which it is not authorized to fish (e.g., on the high seas 
without a valid WCPFC Area Endorsement or in an area under the 
jurisdiction of another nation without an authorization from that 
nation to fish in the area), will be required to stow all fishing gear 
and equipment so such materials are not readily available for fishing.
    Further, the operator of any U.S. fishing vessel (regardless of the 
species for which it is used to fish), when on the high seas in the 
Convention Area, will be required to accept and assist boarding and 
inspection by authorized inspectors of other Contracting Parties to the 
Convention and of fishing entities that have agreed to be bound by the 
regime established by the Convention, provided that such boarding and 
inspection is undertaken in conformance with the WCPFC's adopted 
procedures. At present, Chinese Taipei (Taiwan) is the only fishing 
entity that has agreed to be bound by the regime established by the 
Convention.

10. Confidentiality of Information

    As mandated by the WCPFC Implementation Act, the final rule 
includes procedures designed to preserve the confidentiality of 
information submitted in compliance with the WCPFC Implementation Act 
and its implementing regulations. In accordance with the Convention, 
the procedures allow for the disclosure of confidential information to 
the WCPFC. Once such information is held by the WCPFC, access to the 
information will be governed by the policies and procedures adopted by 
the WCPFC.

Comment and Responses

    Public comments on the proposed rule, organized by subject, are 
summarized below, with responses from NMFS.

Authorization to Fish and Vessel Information

    Comment 1: NMFS proposes to charge $25 (or $5 per year) for the 
WCPFC Area Endorsement. Although this is a small amount relative to 
vessel revenues, NMFS does not provide adequate reasoning of why or how 
this amount will recoup administrative costs, resulting in the 
perception of NMFS attempting to ``nickel and dime'' U.S. fishing 
vessels. NMFS should not charge any fees for WCPFC Area Endorsements, 
but if NMFS insists, then it should describe in the final rule or EA 
how the total amount of monies received from area endorsement 
applications would offset administrative costs.
    Response: NMFS does not agree that an application fee should not be 
charged for WCPFC Area Endorsements. As stated in footnote 63 of the 
EA, the cost estimates for the application fee are based on the 
administrative cost burden incurred by NMFS, which is derived from 
agency practice and experience. The fee has been calculated in 
accordance with the NOAA Finance Handbook to recover the administrative 
costs of administering the permit program for WCPFC Area Endorsements, 
as authorized under section 506 of the WCPFC Implementation Act.
    Comment 2: The new information that will be solicited from vessel 
owners, including nationality of vessel master, vessel communication 
types, type of fishing or method, color photograph of the vessel, and 
carrying capacity, including freezer type, capacity and number, and 
fish hold capacity, could generate confusion regarding the units of 
measurement related to capacity, as well as confusion on the level of 
detail of the required information. NMFS should produce a comprehensive 
compliance guide for vessel owners to follow.
    Response: Clear instructions on the level of detail required, as 
well as the measurement units, will be included in the forms used to 
collect the required information. The requirements are also explained 
in the small entity compliance guide that has been prepared for this 
final rule, available at: https://www.fpir.noaa.gov/IFD/ifd_documents_data.html.
    Comment 3: In 50 CFR 300.212(g) and 300.213(a) the proposed 
regulations call for any changes to vessel information to be reported 
to the NMFS Pacific Islands Regional Administrator within 15 days of 
the change. This requirement would

[[Page 3339]]

be burdensome; 30 days would be much more manageable.
    Response: The proposed 15-day requirement is necessary to satisfy 
the provisions of the Convention and decisions of the WCPFC with 
respect to the obligations of the United States to notify the WCPFC of 
changes to information associated with U.S.-flagged vessels authorized 
to fish in the Convention Area. Furthermore, the proposed 15-day 
requirement is consistent with the existing, related, 15-day 
requirement for changes to application information for permits issued 
under the HSFCA (50 CFR 300.13(g)). The requirement at proposed section 
300.212(g) relates to application information for a WCPFC Area 
Endorsement, which would be issued supplemental to, and as an 
endorsement on, a permit issued under the HSFCA.

Vessel Monitoring System

    Comment 4: The proposed rule includes a requirement in Sec.  
300.219(c)(3)(iii) that prior to leaving port, a vessel owner and 
operator must ``receive verbal or written confirmation from NMFS that 
proper transmissions are being received from the VMS unit.'' The lack 
of availability of staff in the NOAA Office of Law Enforcement, Pacific 
Islands Division (``OLE-PID''), may cause an unreasonable loss of 
fishing time for fishing vessels, which do not operate on a 9 a.m. to 5 
p.m. basis and operate in various time zones. There should be a system 
that allows confirmation of VMS unit operation outside the regular 
office hours of OLE-PID. One suggestion is to allow a vessel to 
contact, and receive confirmation from, a representative of the VMS 
unit manufacturer, after which the vessel could contact and receive 
confirmation from OLE-PID once it opens for business.
    Response: The referenced requirement applies in the case that the 
vessel owner and operator have chosen to shut down the VMS unit while 
at port or otherwise not at sea. NMFS recognizes that the office hours 
of OLE-PID are somewhat constraining, but notes that the owner and 
operator of a fishing vessel need not wait until immediately prior to 
the port departure time to turn on the VMS unit and submit the on/off 
report to NMFS. In order to provide a few additional hours each day for 
these communication purposes, NMFS has made a revision to the final 
rule such that vessel owners and operators may submit the VMS unit on/
off reports to, and receive confirmations from, either OLE-PID or the 
NOAA Office of Law Enforcement's VMS Helpdesk. The contact information 
and business hours for the latter are: telephone: 888-219-9228; e-mail: 
ole.helpdesk@noaa.gov; 7 a.m. to 11 p.m., Eastern Time.
    Comment 5: Under the proposed rule, if a VMS unit fails while the 
vessel is at sea, the vessel owner, operator, or designee must contact 
OLE-PID by telephone, facsimile, or e-mail at the earliest opportunity 
during OLE-PID's business hours, identify the caller and vessel, and 
follow the instructions given by OLE-PID, which could include ceasing 
fishing, stowing fishing gear, returning to port, and/or submitting 
periodic position reports at specified intervals by other means. We 
expect that OLE-PID will be reasonable in the instructions it gives in 
these cases.
    Response: In determining what instructions to give to the operator 
of a fishing vessel whose VMS unit has failed while at sea, OLE-PID 
would take into account the specific circumstances of the case, and 
determine the appropriate course of action consistent with this rule.
    Comment 6: Given that albacore troll and baitboats are small, have 
little problems with bycatch, enforcement issues, or gear conflicts, 
land nearly all their fish on the U.S. west coast and document their 
catch in logbooks, and there are few marine protected areas in offshore 
regions where U.S. albacore troll vessels operate, how effective and 
useful will the required VMS data be?
    Response: The United States is obligated, as a Contracting Party to 
the Convention, to implement Article 24 of the Convention, which calls 
for each WCPFC member to require that its fishing vessels used to fish 
for highly migratory fish stocks on the high seas in the Convention 
Area use near real-time satellite position-fixing transmitters while in 
such areas. In addition, NMFS believes that requiring U.S. albacore 
troll vessels to carry VMS units would provide important information 
that will aid in scientific and compliance-related purposes.
    Comment 7: Why is it proposed that the VMS units have to be turned 
on 365 days per year? A declaration of departure and a check to see if 
the VMS unit is on should serve the purpose.
    Response: Under the proposed rule, as well as this final rule, the 
VMS unit can be shut down while the fishing vessel is at port or 
otherwise not at sea, provided that NMFS is notified both in advance of 
the shut-down and upon turning the VMS unit back on, and that prior to 
subsequently leaving port, the vessel owner and operator receive verbal 
or written confirmation from NMFS that proper transmissions are being 
received from the VMS unit.
    Comment 8: If the United States is requiring VMS units under the 
Convention then NOAA should pay for installation as in other fisheries. 
The U.S. albacore fleet is in economic distress and is an important 
component of the coastal rural economy; any new fees at this time would 
be detrimental to the family-owned U.S. albacore fleet and community at 
this time.
    Response: NMFS is indeed requiring that VMS units be carried in 
order to implement the provisions of the Convention, and NMFS 
recognizes that the proposed VMS requirements would bring new costs to 
businesses that operate HMS fishing vessels in the Convention Area. 
NMFS does not agree that the U.S. Government is responsible for 
covering the cost of coming into compliance with this rule, but notes 
that it has conducted an analysis of the impact of this rule on small 
entities, in accordance with the Regulatory Flexibility Act (see IRFA 
and FRFA). In addition, fishermen may be eligible for full or partial 
reimbursement for the required purchase costs of authorized VMS units, 
to the extent appropriations allow. Questions concerning reimbursement 
eligibility can be directed to the NOAA Office of Law Enforcement VMS 
Support Center at 888-219-9228, and further information is available on 
the Web site of the Pacific States Marine Fisheries Commission: https://www.psmfc.org/Vessel_Monitoring_System.
    Comment 9: According to the proposed rule and EA, 73 vessels would 
have to buy, install, and maintain VMS units as well as pay for VMS 
transmission costs. This would cost approximately up to $1,775 [per 
vessel] per year or $7,100 over the course of four years, which is a 
VMS unit's general lifespan. It does not make sense to break out the 
VMS unit cost by year, as the VMS unit itself costs approximately 
$4,000. The EA does not describe whether NMFS has pursued government 
funding to cover these costs for the 73 affected vessels. NMFS should 
find government funding to make this requirement equitable amongst 
fishery participants--the Western Pacific Regional Fishery Management 
Council strongly believes that NMFS should pay for the VMS costs for 
the two longline vessels operating out of the Commonwealth of the 
Northern Mariana Islands (CNMI), as well as for the albacore troll 
fleet. Furthermore, the proposed rule would require albacore trolling 
vessels to continue to transmit their VMS positions while fishing in 
the eastern Pacific Ocean (EPO). This seems particularly onerous and 
costly for this

[[Page 3340]]

fleet, especially since the proposed rule is in response to WCPFC 
measures. The proposed rule would also require that vessel operators 
provide NMFS with a notice when they power down in port and shut off 
power supply to their VMS unit. Vessel operators would also have to 
inform NMFS that they have powered back on and that they are going on a 
fishing trip. As this is not current practice, NMFS will need to 
develop a detailed outreach plan to inform fishery participants.
    Response: With respect to breaking out the VMS unit costs by year, 
NMFS annualized the estimated cost of purchasing and installing a VMS 
unit in order to express expected compliance costs in terms that could 
be compared with, and added to, the compliance costs of other aspects 
of the proposed requirements--that is, in annual terms (the annualized 
cost of a VMS unit that costs $4,000 to purchase and install and that 
has a lifespan of four years would be about $1,000).
    With respect to who should pay the costs of the VMS-related 
requirements, NMFS does not agree that NMFS or the U.S. Government is 
responsible for covering the costs, but notes that vessel owners might 
be eligible for reimbursement for the cost of VMS units under a program 
administered by the NOAA Office of Law Enforcement (for more 
information, see the response to comment 8, above).
    With respect to the costs and burden of having to transmit position 
reports via VMS while a vessel is fishing in the EPO, outside the 
Convention Area, NMFS considered alternatives that would not require 
such reporting (see the IRFA, FRFA, EA, and RIR, particularly 
Alternatives B and C in the latter two). Position reports will cost 
about $1.50 per day, so the annual VMS-related compliance costs of 
Alternative B, which would require position reports to be transmitted 
only while the vessel is on the high seas in the Convention Area, would 
be about $105-$285 less than under the proposed rule for albacore troll 
vessels, depending on where they fish. However, allowing the VMS unit 
to be turned on and off depending on where at sea the vessel is would 
make it more difficult to ensure that position reports are transmitted 
while in the Convention Area, which would reduce the effectiveness of 
the VMS. For that reason, NMFS believes that the benefits of the 
preferred alternative of requiring position reports everywhere at sea 
outweigh the burden.
    With respect to informing fishery participants about these new VMS-
related requirements, NMFS does not intend to prepare an ``outreach 
plan,'' but it has prepared a small entity compliance guide, available 
at https://www.fpir.noaa.gov/IFD/ifd_documents_data.html, for this 
purpose, and NMFS will use various means to reach out to fishery 
participants to ensure they are aware of the new requirements.

Vessel Observer Program

    Comment 10: The Western Pacific Regional Fishery Management Council 
strongly believes that NMFS should pay for the observer costs for the 
two longline vessels operating out of the CNMI, as well as for the 
albacore troll fleet.
    Response: NMFS has analyzed the costs of accommodating observers in 
the IRFA and has assessed its impacts on small entities. NMFS believes 
that these costs are reasonable and properly should be borne by vessels 
that accept the benefits of commercial fishing for HMS in the 
Convention Area.
    Comment 11: The EA is unclear on why alternatives were not 
identified or considered for implementation of the WCPFC observer 
program. The VMS category considered alternatives that would trigger 
VMS requirements if certain temporal and spatial characteristics were 
met. However, similar alternatives were [not] considered for the vessel 
observer program category. The EA does not provide any explanation on 
why NMFS has no discretion in implementing the WCPFC observer program. 
The observer requirements could be especially onerous for U.S. albacore 
fishermen who fish on relatively small vessels, and no reason is 
provided for potentially requiring them to carry observers when they 
may not be fishing in the Convention Area. NMFS should include and 
analyze this alternative that would avoid this situation in the Final 
EA.
    Response: The observer requirements in the rule implement the 
specific requirements of the WCPFC ROP set forth in Article 28 of the 
Convention. The requirements will apply to any U.S. vessel used for 
commercial fishing for HMS on the high seas in the Convention Area 
(i.e., a vessel that has, or that is required to have, a WCPFC Area 
Endorsement). As explained below, NMFS has clarified in this final rule 
that fishing vessels with WCPFC Area Endorsements will be required to 
accept and accommodate observers only on trips that take place 
partially or fully in the Convention Area. The compliance costs for the 
observer requirements have been estimated accordingly, as described in 
the RIR and IRFA and summarized in the EA.
    Chapters 1 and 2 of the EA set forth the discretionary provisions 
of the rule and the alternatives analyzed in the EA, while Appendix I 
of the EA describes the non-discretionary provisions of the rule. NMFS 
characterized the discretionary provisions as those for which 
reasonable and feasible alternatives could be considered and analyzed. 
As discussed in more detail in the response to Comment 27, below, the 
EA discussed the environmental impacts that could be caused by the non-
discretionary provisions of the rule as part of the cumulative impacts 
analysis. The purpose of the rule is for NMFS to develop and promulgate 
domestic fishery regulations to implement the provisions of the 
Convention that are ready for implementation, while the need for the 
rule is to satisfy the obligations of the United States under the 
Convention. Thus, alternatives that would impose requirements on vessel 
owners and operators that would go beyond the requirements specified 
under the Convention would be outside the scope of this rule. 
Correspondingly, alternatives that would impose requirements on vessel 
owners and operators that would be less restrictive than the 
requirements specified under the Convention would not meet the purpose 
of and need for the rule. NMFS did consider alternatives for the VMS 
requirements that would apply on broader temporal and spatial scales 
than the VMS requirements specified in the Convention. However, these 
alternatives were considered primarily in terms of their capability to 
enhance the enforcement of and compliance with the VMS requirements 
specified in the Convention, concerns not applicable to the observer 
requirements. Alternatives to the observer requirements set forth in 
the rule, such as an alternative that would require vessels with WCPFC 
Area Endorsements to carry observers when operating outside of the 
Convention Area, or an alternative that would allow particular vessels 
to operate without observers, would either exceed the scope of the rule 
or not meet the purpose of and need for the rule.
    Comment 12: With respect to the proposed vessel observer 
requirements, a clear list of questions that observers may 
appropriately ask should be developed and provided to vessel 
management, vessel operators, and observers. The proposed rule spells 
out the responsibilities of vessel operators and crew with respect to 
accommodating observers, but little information is provided on the 
expected

[[Page 3341]]

behavior and responsibilities of observers.
    Response: This final rule does not establish any new reporting 
requirements with respect to WCPFC observers.
    With regard to the expected behavior and responsibilities of 
observers, under the WCPFC ROP, WCPFC observers must be trained to 
specified minimum standards, and they are obligated to behave and 
perform in conformance with principles and guidelines specified in the 
WCPFC Conservation and Management Measure for the Regional Observer 
Programme (Conservation and Management Measure 2007-01, available at: 
https://www.wcpfc.int/conservation-and-management-measures). In the case 
that a WCPFC observer is deployed as part of a NMFS observer program, 
NMFS would work to ensure that the observer behaves and performs in 
conformance with those principles and guidelines. If the WCPFC observer 
is deployed under some other program, such as the FFA observer program, 
NMFS would work with the personnel in that program, as well as in the 
WCPFC, to ensure, to the extent possible, that that program's observers 
behave and perform in conformance with the principles and guidelines 
established in the WCPFC ROP.
    Comment 13: In order to provide timely feedback to vessel 
operators, which would improve their observer responsibilities, 
observers should be debriefed at the end of each fishing trip, such as 
by NMFS staff in the presence of the vessel captain.
    Response: NMFS agrees that debriefings are important and should be 
an element of the WCPFC ROP. However, WCPFC observers are not 
necessarily deployed by NMFS or otherwise in the employ of the U.S. 
Government, so NMFS is not able to mandate that observer debriefings 
occur or that vessel captains be allowed to attend such debriefings. 
Instead, such provisions would have to be incorporated into the WCPFC 
ROP, the applicable provisions of which NMFS would then implement as 
needed. As part of U.S. delegations to the WCPFC, NMFS will keep this 
comment under consideration as the WCPFC further develops the WCPFC 
ROP.
    Comment 14: The cost of carrying an observer is estimated in the 
IRFA to cost $20 per day, which, at a 5% coverage rate, would total 
$350 per trip, depending on the length of the trip. But because 
albacore vessels operating west of 150[deg] W. long. would be at sea 
for 25 to 100 days, the cost would be more like $400 to $2,000 per 
trip. These costs should be clarified and a cap of $350 per trip should 
be considered.
    Response: It is stated in the IRFA that at a daily cost of $20, a 
5% coverage rate, and 170 to 350 days at sea per year, the annual (not 
per-trip) cost would be $170 to $350. This is an estimate of average 
annual costs; the cost would be greater in a year in which a vessel was 
required to carry an observer on more than 5% of its sea-days, and the 
cost would be less in a year in which the vessel was required to carry 
an observer on less than 5% of its sea-days. The estimated cost of an 
observed trip 100 days long would indeed be about $2,000, as indicated 
by the commenter. NMFS believes it to be appropriate that vessel owners 
and operators bear the entirety of these costs and that a cap is not 
appropriate.
    Comment 15: Most albacore vessels are small compared to longline 
and purse seine vessels; a typical vessel operating west of 150[deg] W. 
long. would be 50-100 feet in length and have a crew of 2-3 persons; 
most of the vessels in the 50-65-foot range have limited space for 
observers, especially on extended trips.
    Response: NMFS recognizes that some fishing vessels have limited 
space and small crew sizes. If NMFS determines that deploying an 
observer on a particular vessel would compromise the safety of the 
observer or the vessel crew, it would not deploy the observer.
    Comment 16: Considering that albacore troll vessels may be at sea 
for 25 to 100 days at a time and operate in a fishery with virtually no 
environmental or regulatory impacts, how practical is it to carry an 
observer?
    Response: One of the purposes of deploying observers under the 
WCPFC ROP is to gather information that can be used to characterize 
fishing activities and their impacts on living marine resources. As 
more information is gathered and better characterizations are developed 
in a given fishery, such as the albacore troll fishery, NMFS expects 
that the coverage rate in that fishery would be adjusted by the WCPFC 
accordingly.
    Comment 17: Albacore troll vessels operate at least 7-10 days away 
from any harbor and travel at only 7-9 knots; aborting a trip because 
of a health or other problem with an observer would be problematic; who 
would reimburse the vessel for potentially two to three weeks of lost 
time?
    Response: NMFS recognizes that there may be instances in which the 
presence of an observer on board a fishing vessel could influence the 
course of a fishing trip. NMFS, however, believes that these 
occurrences will be rare. Accordingly, the final rule does not include 
any provisions for reimbursing or otherwise compensating vessel owners 
or operators for any losses incurred in such instances.

Vessel Identification

    Comment 18: The proposed vessel identification requirements, which 
in the case of a vessel that has not been assigned an international 
radio call sign require that the vessel's Federal, State or other 
documentation number be preceded by the letters ``USA'', might be a 
problem for some smaller albacore vessels because of space, 
particularly given that under the U.S.-Canada Albacore Treaty U.S. 
vessels are already required to put a ``U'' after the vessel's U.S. 
Coast Guard Documentation number or state registration number.
    Response: The rule specifies minimum heights of the letters and 
numbers to be marked on the vessel that are proportional to the length 
of the vessel. The rule also specifies minimum widths of strokes, 
minimum hyphen lengths, and minimum sizes of the spaces between letters 
and numbers, all of which are expressed in terms of the letter height. 
In other words, the size specifications for the vessel markings 
explicitly take boat length into consideration.
    It should also be noted that the vessel identification requirements 
under the U.S.-Canada Albacore Treaty (at 50 CFR 300.173) conflict with 
the vessel identification requirements established in this rule, and 
because of that, the requirements in this rule will become effective 
only when the requirements at 50 CFR 300.173 have been revised so as to 
remove the conflict.

Transshipment Restrictions

    Comment 19: The proposed rule's prohibition on purse seine 
transshipments at sea is appropriate. However, NMFS should provide 
information on the impact of the proposed rule's prohibition on purse 
seine transshipments at sea and also describe if the U.S. fleet has 
historically transshipped, including the locations of such 
transshipments, in past years.
    Response: As described in the IRFA and RIR, U.S. purse seine 
vessels are already subject to substantial restrictions on at-sea 
transshipments under the SPTA, and U.S. purse seine vessels 
consequently do not, in practice, transship at sea. Accordingly, this 
requirement is not expected to bring a new compliance burden on 
affected fishermen or otherwise cause any impacts on purse seine 
transshipments at sea.

[[Page 3342]]

Reporting and Recordkeeping

    Comment 20: The proposed rule would require any U.S. commercial 
fishing vessel fishing for HMS anywhere in the Pacific Ocean to submit 
catch and effort information to NMFS. The preamble to the proposed rule 
indicates that these reporting requirements are already met by 
reporting requirements established under the MSA, the HSFCA, the Tuna 
Conventions Act of 1950, the SPTA, the implementing legislation for the 
U.S.-Canada Albacore Treaty, as well as relevant State reporting 
requirements. The proposed rule and EA do not include detailed 
information to verify NMFS' indication that this is applicable to 5,000 
vessels, nor do they discuss in detail how NMFS is currently obtaining 
this important information.
    Response: The proposed rule and EA include what NMFS believes to be 
sufficient detail to explain the proposed requirements and their basis 
and to assess their impacts. The rule at 50 CFR 300.218 details the 
specific regulations that contain the applicable catch and effort 
reporting requirements.

Compliance With the Laws of Other Nations

    Comment 21: The proposed rule's requirement for owners and 
operators to comply with laws of other nations is appropriate. However, 
the EA does not provide any current or historical information on the 
number of U.S. vessels that fish in the exclusive economic zones of 
other member nations. To get a better understanding on the issue, the 
Final EA should include this information.
    Response: Annex III, Article 2 of the Convention sets forth the 
specific provisions for complying with national laws that are being 
implemented in this rule. Providing current or historical information 
on the number of U.S. vessels that fish in the exclusive economic zones 
of other WCPFC members in the EA would not provide information relevant 
to the analysis or affect the proposed action. See the IRFA and FRFA 
for estimates of the numbers of vessels and small entities to which 
this requirement will apply.

Facilitation of Enforcement and Inspection

    Comment 22: The proposed rule states that the operator of any U.S. 
fishing vessel must accept and assist boarding and inspection by 
contracting parties of the WCPFC. As there are U.S. vessels that have 
Pacific Remote Island Areas bottomfish, lobster, and troll permits, 
NMFS should provide information to these vessel operators so that they 
are aware of potential boarding and inspection by non U.S. parties. The 
final rule and Final EA should describe this outreach as well as the 
number and type of other U.S. fishing vessels that could be subject to 
non-U.S. boarding and inspection.
    Response: NMFS will endeavor to ensure that all affected U.S. 
fishing vessels are aware of this new requirement, such as by making 
copies of this final rule and its associated small entity compliance 
guide available to affected permit holders.
    Comment 23: In the case of a high seas boarding and inspection of a 
U.S. vessel, NMFS or the U.S. Coast Guard should establish and maintain 
communication with the U.S. vessel during the boarding and inspection 
and should also follow up with the vessel afterwards to ascertain if 
any problems occurred. NMFS should also provide guidelines for U.S. 
vessel operators to follow in the event of a boarding on the high seas 
by a WCPFC member nation.
    Response: U.S. Government entities such as NMFS and the U.S. Coast 
Guard will establish and maintain communications with U.S. vessels as 
required under applicable laws and in accordance with agency policies 
and practices. This rule establishes the requirements with which U.S. 
vessel operators must comply in the event of a boarding and inspection 
undertaken pursuant to WCPFC procedures. These requirements are also 
explained in the small entity compliance guide prepared for this rule, 
available at https://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: https://www.wcpfc.int/guidelines-procedures-and-regulations.

Other

    Comment 25: The definition of ``fishing'' should not include 
activities that take place in port, such as transshipping. The proposed 
definition, which would include transshipment, could improperly cause 
days in port to be counted against available fishing days.
    Response: The definition of ``fishing'' in the regulations must be 
consistent with the definition in the WCPFC Implementation Act, which 
specifies that ``fishing'' includes transshipment, but only ``at sea.'' 
Accordingly, NMFS has revised the definition of ``fishing'' in the 
final rule to clarify that it includes transshipment, but only at sea.
    Comment 26: Carriers and refueling vessels should not be treated as 
fishing vessels in virtually all ways; the United States should be 
careful to not impose more regulations on these vessels than are 
required; we hope the United States will continue to negotiate 
reasonable working arrangements for these vessels.
    Response: The definition in this rule of ``fishing vessel'' 
includes carriers and bunkering and other support vessels, consistent 
with the definition of ``fishing vessel'' in the WCPFC Implementation 
Act. The scope of the regulations established in this rule as they 
relate to carriers and bunkers is consistent with the provisions of the 
Convention and

[[Page 3343]]

the decisions of the WCPFC. NMFS, as part of U.S. delegations to the 
WCPFC, will continue to promote conservation and management measures 
that include appropriate and reasonable requirements for carriers and 
bunkers.
    Comment 27: Overall, the EA should be improved to discuss the 
impact of the ``non-discretionary'' obligations.
    Response: The EA addressed the ``non-discretionary'' provisions of 
the rule as part of the cumulative impacts analysis, as specified in 
Section 4.2.13 of the EA. The non-discretionary provisions would impose 
a financial burden on fishermen that is minor relative to the total 
gross revenue earned by each fishing vessel. Table 40 of the EA details 
this financial burden. Accordingly, the financial burden of the non-
discretionary provisions in addition to the financial burden imposed on 
fishermen from the discretionary provisions, would enhance the 
likelihood and/or magnitude of the expected environmental impacts of 
the discretionary provisions of the rule (which are detailed in the 
EA), but only slightly so.
    Comment 28: Table 41 of the EA indicates that NMFS contacted the 
Western Pacific Regional Fishery Management Council (Council) for 
information, but the Council has no record of this.
    Response: As indicated in Section 1.3 of the EA, NMFS published a 
Notice of Intent (NOI) to prepare the EA in the Federal Register on 
February 26, 2007. During the time between the publication of the NOI 
and issuance of the EA, NMFS informally discussed the scope and 
contents of the EA with Council staff who have NEPA expertise. Thus, 
NMFS believed it appropriate to list the Council as a party that was 
contacted for information in Table 41 of the EA.
    Comment 29: It is vital to the survival of the U.S. purse seine 
fleet that the United States negotiate measures in regional fisheries 
management organizations (RFMO) that impose a comparable burden on all 
participants in the fishery, and that U.S. fishermen do not bear an 
unfair amount of the conservation burden. Furthermore, it is critical 
to the survival of the U.S. purse seine fleet that domestic regulations 
implementing RFMO measures not be significantly more burdensome on the 
U.S. fleet than those imposed on the fleet's foreign competitors. Also, 
it is the responsibility of the U.S. Government to ensure that other 
governments implement substantially similar rules and regulations, and 
the U.S. Government should promptly give notice to the appropriate RFMO 
of any shortcomings in the regulations and enforcement by other member 
countries of the RFMO.
    Response: This comment does not pertain to the proposed rule 
itself. NMFS, as part of U.S. delegations to the WCPFC and other RFMOs, 
shares the view that all participants in affected fisheries should 
share comparable burdens when seeking to achieve conservation and 
management objectives, and NMFS applies this principle in its role as 
part of U.S. delegations to the WCPFC and other RFMOs. As part of such 
U.S. delegations, NMFS routinely endeavors to determine whether all 
RFMO members are satisfying their obligations to implement the 
decisions of the RFMOs, and to alert the RFMOs, as appropriate, about 
any shortcomings in such implementation.

Changes From the Proposed Rule

    In the proposed regulations, regulatory instruction (3) said that 
``Subpart O, consisting of Sec. Sec.  300.210 through 200.222, is added 
to part 300 to read as follows:'' The instruction was meant to read ``* 
* * consisting of Sec. Sec.  300.210 through 300.222 * * *'' and the 
corresponding instructions in this final rule are corrected 
accordingly.
    The proposed rule that led to this final rule would have 
established a new subpart O in part 300 of title 50 of the Code of 
Federal Regulations, titled ``Western and Central Pacific Fisheries for 
Highly Migratory Species.'' However, on August 4, 2009, after 
publication of that proposed rule, NMFS published in the Federal 
Register a final rule to implement certain decisions of the WCPFC (74 
FR 38544). That final rule (called here the ``WCPFC purse seine rule'') 
established subpart O in part 300 of title 50, including some of the 
definitions and certain other regulations that would have been 
established in the proposed rule for this action. Consequently, the 
regulations in this final rule are written as amendments to the 
sections in subpart O, and since some of the regulations in the 
proposed rule for this action have already been established in the 
WCPFC purse seine rule, they need not be included in this final rule. 
Specifically, the following elements of the regulations in the proposed 
rule for this action are not included in this final rule: Sec.  
300.210, ``Purpose and scope,'' in its entirety; in Sec.  300.211, 
``Definitions,'' the introductory sentence and the definitions for all 
the terms needed in the WCPFC purse seine rule; in Sec.  300.215, 
``Observers,'' all of paragraph (c) except the sentence ``All fishing 
vessels subject to this section must carry a WCPFC observer when 
directed to do so by NMFS'' (which has been further revised--see 
below); and in Sec.  300.222, ``Prohibitions,'' the introductory 
sentence.
    In Sec.  300.211, ``Definitions,'' the definition of ``Fishing'' 
has been revised to clarify that it includes transshipment only if the 
transshipment takes place at sea.
    In Sec.  300.212, ``Vessel permit endorsements,'' the following 
statement has been removed from paragraph (c)(3), which relates to the 
requirement that a photograph of the subject vessel be included with 
the application for a WCPFC Area Endorsement: ``A vessel photograph 
submitted as part of an application for a high seas fishing permit will 
be deemed to satisfy the requirement under this section, provided that 
it clearly shows that the vessel is marked in accordance with the 
vessel identification requirements of Sec.  300.217 and it meets the 
specifications pr