[Federal Register Volume 77, Number 31 (Wednesday, February 15, 2012)]
[Proposed Rules]
[Pages 8759-8776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3546]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 110209128-1694-01]
RIN 0648-BA85


International Fisheries; Western and Central Pacific Fisheries 
for Highly Migratory Species; Transshipping, Bunkering, Reporting, and 
Purse Seine Discard Requirements

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations under the authority of the Western 
and Central Pacific Fisheries Convention Implementation Act (WCPFC 
Implementation Act) to implement requirements for U.S. fishing vessels 
used for commercial fishing that offload or receive transshipments of 
highly migratory species (HMS), U.S. fishing vessels used for 
commercial fishing that provide bunkering or other support services to 
fishing vessels, and U.S. fishing vessels used for commercial fishing 
that receive bunkering or engage in other support services, in the area 
of application of the Convention on the Conservation and Management of 
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 
(Convention). Some of the requirements would also apply to 
transshipments of fish caught in the area of application of the 
Convention (Convention Area) and transshipped elsewhere. NMFS also 
proposes requirements regarding notification of entry into and exit 
from the ``Eastern High Seas Special Management Area'' (Eastern SMA) 
and requirements relating to discards from purse seine fishing vessels. 
This action is necessary for the United States to implement decisions 
of the Commission for the Conservation and Management of Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean 
(Commission or WCPFC) and to satisfy its obligations under the 
Convention, to which it is a Contracting Party.

DATES: Comments must be submitted in writing by April 16, 2012.

ADDRESSES: Comments on this proposed rule, identified by NOAA-NMFS-
2011-0281, the environmental assessment (EA), the regulatory impact 
review (RIR) prepared for the proposed rule, the Pacific Transshipment 
Declaration

[[Page 8760]]

Form, and the U.S. Purse Seine Discard Form may be sent to either of 
the following addresses:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking portal, at http://www.regulations.gov; or
     Mail: Mail written comments to Michael D. Tosatto, 
Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 
1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.
    Instructions: Comments must be submitted to one of the two 
addresses to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent to any other address or individual, 
or received after the end of the comment period, may not be considered. 
All comments received are part of the public record and generally will 
be posted on http://www.regulations.gov without change. All personal 
identifying information (for example, name and address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. NMFS will accept anonymous comments (enter ``N/A'' in the 
relevant required fields if you wish to remain anonymous). Attachments 
to electronic comments will be accepted in Microsoft Word or Excel, 
WordPerfect, or Adobe PDF file formats only.
    An initial regulatory flexibility analysis (IRFA) prepared under 
the authority of the Regulatory Flexibility Act (RFA) is included in 
the Classification section of the SUPPLEMENTARY INFORMATION section of 
this proposed rule.
    Copies of the EA, RIR, Pacific Transshipment Declaration Form, and 
U.S. Purse Seine Discard Form prepared for this proposed rule are 
available from http://www.regulations.gov or may be obtained from 
Michael D. Tosatto, NMFS PIRO (see address above).
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to Michael D. Tosatto, Regional 
Administrator, NMFS PIRO (see address above) and by email to [email protected] or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-944-2273.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is also accessible at http://www.gpoaccess.gov/fr.

Background on the Convention and the WCPFC

    The Convention Area comprises the majority of the western and 
central Pacific Ocean (WCPO). A map showing the boundaries of the 
Convention Area can be found on the WCPFC Web site at: http://www.wcpfc.int/doc/convention-area-map. The Convention focuses on the 
conservation and management of highly migratory species (HMS) and the 
management of fisheries for HMS.
    As a Contracting Party to the Convention and a Member of the WCPFC, 
the United States is obligated to implement the decisions of the WCPFC. 
The WCPFC Implementation Act (16 U.S.C. 6901 et seq.), 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.
    This proposed rule would implement provisions adopted by the WCPFC 
in Conservation and Management Measures (CMMs) 2009-06, 2009-01, 2010-
02, and 2009-02. A full discussion of the provisions to be implemented 
in each CMM is provided below.

WCPFC Decision Regarding the Regulation of Transshipments in the 
Convention Area

    At its Sixth Regular Session, in December 2009, the WCPFC adopted 
CMM 2009-06, ``Conservation and Management Measure on the Regulation of 
Transhipment.'' The CMM, available with other decisions of the WCPFC at 
http://www.wcpfc.int/conservation-and-management-measures, furthers the 
objectives of Article 29 of the Convention and includes specific 
obligations for WCPFC Members, Participating Territories, and 
Cooperating Non-Members (collectively, CCMs) to regulate transshipment 
activities in the Convention Area. Among the objectives of the CMM is 
to establish procedures to obtain and verify data on the quantity and 
species transshipped in the Convention Area and on the quantity and 
species caught in the Convention Area and transshipped elsewhere to 
ensure accurate reporting of catches, so that stock assessments of HMS 
include improved data.
    CMM 2009-06 is premised on the recognition that unregulated and 
unreported transshipment of catches of HMS at sea contributes to 
inaccurate reporting of the catches of such stocks, which contributes 
to illegal, unreported, and unregulated (IUU) fishing activities. The 
term transshipment, as specified in the Convention, means the unloading 
of all or any fish on board a fishing vessel to another fishing vessel 
either at sea or in port. Provisions of the CMM generally apply to 
vessel owners and operators that transship HMS covered by the 
Convention in the Convention Area. Vessel owners and operators 
undertaking these transshipments must comply with provisions for 
observer coverage, notice and reporting requirements, and provisions 
regarding the types of vessels with which transshipments may be 
conducted. Vessel owners and operators conducting transshipments 
outside the Convention Area of HMS caught in the Convention Area must 
also comply with notice and reporting provisions. No provisions of the 
CMM apply if the fish are both caught and transshipped in archipelagic 
waters or territorial seas.
    The CMM includes provisions that obligate CCMs to do the following: 
(1) For transshipments of HMS in the Convention Area or HMS caught in 
the Convention Area, require owners and operators of vessels that 
offload or receive transshipments, at sea or in port, to complete a 
transshipment report including specific information detailing the 
transshipment and the products transshipped; if the transshipment takes 
place on the high seas or is an emergency transshipment that would 
otherwise be prohibited, the report must be submitted to the WCPFC 
within 15 days of the transshipment; (2) require that a notice be 
submitted to the WCPFC containing specific information in the case of 
an emergency transshipment of HMS in the Convention Area or HMS caught 
in the Convention Area that would otherwise be prohibited within 12 
hours of the completion of the transshipment by means of a device that 
can both send and receive data (e.g., fax or email); (3) require that a 
notice be submitted to the WCPFC containing specific information at 
least 36 hours prior to each transshipment on the high seas in the 
Convention Area or of fish caught in the Convention Area and 
transshipped on the high seas elsewhere by means of a device that can 
both send and receive data (e.g., fax or email); (4) require that 
observers be carried on vessels to monitor transshipments at sea in the 
Convention Area; and (5) prohibit vessels from transshipping to or from 
a

[[Page 8761]]

vessel flagged to a non-CCM in the Convention Area unless that vessel 
has received specified forms of authorization, such as being listed on 
the WCPFC Interim Register of Non-Member Carrier and Bunker Vessels 
(Interim Register) or being specifically licensed to fish in the 
exclusive economic zone (EEZ) of a CCM in accordance with a decision of 
the WCPFC.
    Under the Convention, CCMs are obligated, with limited exceptions, 
to prohibit transshipments at sea involving purse seine vessels in the 
Convention Area. NMFS has implemented this prohibition (see 50 CFR 
300.216(b)). CMM 2009-06 also requires CCMs to prohibit transshipments 
at sea involving purse seine vessels of fish caught in the Convention 
Area but transshipped outside of the Convention Area. However, purse 
seine vessels would continue to be able to transship in port.
    CMM 2009-06 also contains a provision obligating CCMs to prohibit 
vessels (other than purse seine vessels) flying their flags from 
transshipping on the high seas in the Convention Area, subject to 
certain considerations. NMFS has prepared an advance notice of proposed 
rulemaking to solicit public comments regarding this provision of CMM 
2009-06 (see NOAA-NMFS-2012-0001 at www.regulations.gov).

WCPFC Decision Regarding Carrier and Bunker Vessels

    At its Sixth Regular Session, in December 2009, the WCPFC adopted 
CMM 2009-01, ``WCPFC Record of Fishing Vessels and Authorization to 
Fish.'' This CMM revised CMM 2004-01, and specifically established the 
Interim Register, which includes all non-CCM carrier and bunker vessels 
that are authorized by the Commission to be used in the Convention Area 
for transshipping, bunkering, or other supply activities. CMM 2009-01 
includes a specific provision obligating WCPFC Members and Cooperating 
Non-Members to prohibit their fishing vessels from conducting 
transshipping and bunkering or other support activities in the 
Convention Area with another vessel unless that vessel is: (1) Flagged 
to WCPFC Members or Cooperating Non-Members; (2) on the Interim 
Register; or (3) operated under charter, lease, or similar mechanisms 
as an integral part of the fishery of a CCM, in accordance with 
relevant WCPFC provisions. This provision is similar to the provision 
in CMM 2009-06 obligating CCMs to prohibit vessels from transshipping 
to or from a vessel flagged to a non-CCM unless that vessel has 
received specific authorization, such as a non-CCM carrier vessel that 
is on the Interim Register.

WCPFC Decision Regarding Entry and Exit Notification for the Eastern 
SMA

    At its Seventh Regular Session, in December 2010, the WCPFC adopted 
CMM 2010-02, ``Conservation and Management Measure for the Eastern 
High-Seas Pocket Special Management Area.'' This measure seeks to 
reduce IUU fishing and applies to the area of the high seas bounded by 
the EEZs of the Cook Islands to the north and west, French Polynesia to 
the east, and Kiribati to the northeast. The measure obligates CCMs to 
require their vessels to submit reports with specific information, 
including catch data, at least six hours prior to entry and no later 
than six hours prior to exiting this area of the high seas.
    CMM 2010-02 also includes a provision requiring CCMs to encourage 
their vessels operating in the Eastern SMA to report sightings of any 
vessel to the WCPFC Secretariat, and provide specific information to 
the WCPFC Secretariat for each sighting (date, time, position, bearing, 
markings, speed, and vessel type). Because of the limited presence of 
U.S. vessels operating in the Eastern SMA (see the EA) and the non-
obligatory nature of this provision, this proposed rule would not 
implement this provision of CMM 2010-02. The map in Figure 1 shows the 
Eastern SMA as the high seas area within the rectangle bounded by the 
bold black lines.
    Figure 1. Eastern SMA. Areas of high seas are indicated in white; 
areas of claimed national jurisdiction, including territorial seas, 
archipelagic waters, and EEZs, are indicated in dark shading. The 
Eastern SMA is the high seas area (in white) within the rectangle 
bounded by the bold black lines. This map displays indicative maritime 
boundaries only.

[[Page 8762]]

[GRAPHIC] [TIFF OMITTED] TP15FE12.000

WCPFC Decision on Discards From Purse Seine Vessels

    At its Sixth Regular Session, in December 2009, the WCPFC adopted 
CMM 2009-02, ``Conservation and Management Measure on the Application 
of High Seas Fish Aggregating Device (FAD) Closures and Catch 
Retention.'' The provisions in CMM 2009-02 modify or supplement the 
provisions in CMM 2008-01, ``Conservation and Management Measure for 
Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean,'' 
for FAD prohibition periods and catch retention requirements for purse 
seine fishing vessels, including specific requirements for reporting 
discards of fish. Prior to the adoption of CMM 2009-02, NMFS issued 
regulations implementing the requirements for the FAD prohibition 
periods and catch retention specified in CMM 2008-01. Those regulations 
are set forth at 50 CFR 300.223. NMFS has determined that the 
regulations implementing the FAD prohibition periods and catch 
retention requirements under CMM 2008-01 are consistent with the 
related provisions of CMM 2009-02. Therefore, no additional steps need 
to be taken at this time to implement these provisions, except that 
NMFS proposes to remove the termination date (December 31, 2012) 
applicable to the current catch retention provision. In addition, CMM 
2009-02 also contains new reporting requirements for discards of fish 
from purse seine vessels, which would be implemented under this 
rulemaking. The reporting provisions obligate CCMs to require owners 
and operators of vessels to ensure the submission of a report to the 
Commission containing specific information regarding discards no later 
than 48 hours after any discard at sea of fish. The provisions also 
obligate CCMs to require that a hard copy of the information be 
provided to the WCPFC Observer on board the vessel.

Net Sharing Restrictions

    This proposed rule also would implement restrictions regarding 
``net sharing'' (i.e., the transfer of fish that have not yet been 
loaded on board any fishing vessel from the purse seine net of one 
vessel to another fishing vessel) for U.S. purse seine vessels fishing 
in the Convention Area. The regulations at 50 CFR 300.223(d) 
implementing the catch retention requirements of CMM 2008-01 require 
U.S. purse seine fishing vessels to retain all catch of bigeye tuna 
(Thunnus obesus), yellowfin tuna (Thunnus albacares), and skipjack tuna 
(Katsuwonus pelamis) unless: (1) The fish are unfit for human 
consumption; (2) there is insufficient well space to accommodate all 
the fish captured in a given set, provided that no additional sets are 
made during the trip; or (3) serious malfunction of equipment occurs. 
In addition, the regulations at 50 CFR 300.216 prohibit purse seine 
vessels from conducting transshipments at sea in the Convention Area. 
However, on occasion a vessel will have insufficient well space to 
accommodate all the fish caught in a set.
    NMFS believes that in such circumstances, it would be appropriate 
to allow the vessel to transfer the excess fish in the net to another 
vessel for the purpose of reducing discards. NMFS' proposal is 
consistent with CMM 2008-01, which states that ``excess fish taken in 
the last set may be transferred to and retained on board another purse 
seine vessel provided this is not prohibited under applicable national 
law.''
    Thus, the proposed rule would exclude net sharing activities from 
the definition of transshipment (which for purse seine vessels is 
generally prohibited at sea). However, a purse seine vessel that 
transfers fish through net sharing would be prohibited from making any 
additional purse seine sets during the remainder of its fishing trip.
    Under the proposed rule, U.S. purse seine vessels would be 
prohibited from net sharing with the exception that they

[[Page 8763]]

would be allowed to conduct limited net sharing, as described above, on 
the final set of a trip with other U.S. purse seine vessels. However, 
since NMFS has limited ability to enforce a last-set requirement for 
foreign vessels, the proposed rule would prohibit U.S. purse seine 
vessels from conducting any net sharing with foreign-flagged vessels.

Existing Regulations Governing Transshipment Activities in the 
Convention Area

    Certain vessel owners and operators that would be subject to this 
proposed rule are currently subject to regulations regarding 
transshipments, specifically on reporting transshipment activities. 
None of the requirements under the proposed rule would conflict with 
those regulations. However, there would be some overlap with the 
current reporting requirements. These overlaps are described below. 
Aside from the 15-day requirement for high seas and emergency 
transshipments, as described above, CMM 2009-06 does not provide 
specific requirements for when the transshipment report must be 
submitted. Thus, the proposed rule would require vessel owners and 
operators who are subject to other existing transshipment reporting 
requirements to submit the information in the transshipment report on 
the same schedule as those requirements for all transshipments other 
than emergencies or those that occur on the high seas.

Requirements for Vessels Licensed Under the South Pacific Tuna Act of 
1988

    The South Pacific Tuna Act, (SPTA; 16 U.S.C. 973-973r), implements 
the Treaty on Fisheries between the Governments of Certain Pacific 
Island States and the Government of the United States of America 
(Treaty), which requires the submission of a transshipment logsheet 
form. Purse seine vessels licensed under the SPTA implementing 
regulations must complete a transshipment logsheet form for each 
transshipment. The logsheet form, which can be obtained from the NMFS 
Pacific Islands Regional Administrator, must be accompanied by a report 
of the size breakdown of the catch as determined by the receiver of the 
fish, also known as a ``final outturn'' report. The logsheet form and 
final outturn report must be submitted to the NMFS Pacific Islands 
Regional Administrator within two days of the completion of the 
transshipment and to the Treaty Administrator (currently the Pacific 
Islands Forum Fisheries Agency (FFA)) within fourteen days of the 
transshipment (50 CFR 300.34(c)(2)). Owners and operators of vessels 
licensed under the SPTA that are involved in transshipments of HMS in 
the Convention Area or in transshipments of HMS caught in the 
Convention Area and transshipped elsewhere, would be subject to the new 
reporting requirements in the proposed revised section 300.218 of title 
50 of the Code of Federal Regulations set forth in this proposed rule.

Requirements for Vessels Receiving Transshipments of Longline-Caught 
Fish

    Under current regulations, owners and operators of vessels 
registered for use as receiving vessels used to land or transship 
western Pacific pelagic management unit species (MUS) (i.e., species 
managed under the Fishery Ecosystem Plan for Pacific Pelagic Fisheries 
of the Western Pacific Region) that were harvested using longline gear 
shoreward of the outer boundary of the U.S. EEZ around American Samoa, 
Hawaii, Guam, the Commonwealth of the Northern Mariana Islands, or the 
Pacific remote island areas (PRIA; these include Palmyra Atoll, Kingman 
Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll, Wake 
Island, and Midway Atoll), must submit a transshipment logbook 
containing report forms available from the NMFS Pacific Islands 
Regional Administrator. All information specified on the form must be 
recorded on the form within 24 hours of the transshipment. Each form 
must be signed and dated by the receiving vessel operator. The original 
logbook form for each day of transshipment activity must be submitted 
to the NMFS Pacific Islands Regional Administrator within 72 hours of 
each landing of western Pacific pelagic MUS (50 CFR 665.14(c) and 50 
CFR 665.801(e)).
    NMFS would replace the transshipment logbook form currently in use 
with the proposed Pacific Transshipment Declaration Form. Thus, owners 
and operators of vessels receiving transshipments of longline-caught 
fish in the U.S. EEZ around American Samoa, Hawaii, Guam, the 
Commonwealth of the Northern Mariana Islands, or PRIA would be required 
to submit only one form for a given transshipment. Owners and operators 
of vessels that offload the fish would be required to complete the form 
as well, though they are not required to do so under the current 
regulations.
    The transshipment reporting requirements under CMM 2009-06 do not 
include several of the pieces of information on the existing form, 
which, again, is currently required to be completed only by owners or 
operators of receiving vessels. These include: (1) The receiving vessel 
permit number; (2) the broker or shipping agent of the receiving 
vessel; (3) the port of landing of the receiving vessel; (4) the number 
of days the offloading vessel fished; (5) the number of sets made by 
the offloading vessel; (6) the average number of hooks fished per day 
by the offloading vessel; and (7) the general area of the offloading 
vessel's catch, broken into four specific quadrants. Based on the 
recommendations of the Western Pacific Fishery Management Council at 
its 148th Meeting, NMFS proposes to include the port of landing and 
broker or shipping agent information requirements in the new 
transshipment report form; the other pieces of information that are not 
required under the provisions of CMM 2009-06 would not be included.

Requirements for Vessels Fishing for HMS in the U.S. EEZ Off the Coasts 
of Washington, Oregon, California, or Adjacent High Seas Waters

    Current Federal regulations require the operator of any commercial 
fishing vessel or recreational charter vessel fishing for HMS in the 
management area of the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species to maintain on board the vessel 
an accurate and complete record of catch, effort, and other data on 
report forms available from the NMFS Southwest Regional Administrator. 
All information specified on the forms must be recorded on the forms 
within 24 hours of the completion of each fishing day. The current 
version of these forms includes information about at-sea 
transshipments. The original form for each day of the fishing trip must 
be submitted to the NMFS Southwest Regional Administrator within 30 
days of each landing or transshipment of HMS (50 CFR 660.708(a)). The 
form currently only requires three pieces of information regarding 
transshipments--the date, transshipper (receiving vessel), and amount 
(tonnage) of fish transshipped. Such information is required to be 
reported only for transshipments that take place at sea. Under this 
proposed rule, vessel owners and operators subject to the transshipment 
requirements at 50 CFR part 660 and the requirements proposed in this 
rule would be required to complete and submit the current report form 
as well as the new transshipment report proposed in this rule.

Proposed Action

    This proposed rule contains the following seven new categories of

[[Page 8764]]

requirements: (1) Reporting requirements for transshipments, including 
the information specified in Annex I of CMM 2009-06 for the 
transshipment report; (2) requirements for providing notice of 
transshipments on the high seas or emergency transshipments that would 
otherwise be prohibited; (3) requirements for observer coverage for 
transshipments at sea; (4) restrictions on the vessels with which 
transshipping, bunkering or other support activities may be conducted; 
(5) requirements regarding notification of entry into and exit from the 
Eastern SMA; (6) requirements regarding discards from purse seine 
fishing vessels; and (7) other requirements. Each of these categories 
of requirements is described in detail below.
1. Transshipment Reporting Requirements
    The owner and operator (operator means, with respect to any vessel, 
the master or other individual aboard and in charge of that vessel) of 
any U.S. fishing vessel used for commercial fishing that transships HMS 
in the Convention Area, whether from an offloading or receiving vessel, 
or that transships HMS caught in the Convention Area, whether from an 
offloading or receiving vessel, would be required to ensure the 
completion of and submission to NMFS of a transshipment report form 
available from the NMFS Pacific Islands Regional Administrator. A 
separate report would be required for each transshipment. As some of 
the information might be known by only the receiving vessel operator 
and some of the information might be known only by the offloading 
vessel operator, the operators of both vessels may need to exchange 
information regarding transshipment activities.
    The information specified on the report would need to be recorded 
within 24 hours of completion of the transshipment. For transshipments 
on the high seas or for emergency transshipments that would otherwise 
be prohibited, the report would be required to be submitted by email or 
fax to the appropriate address specified by the NMFS Pacific Islands 
Regional Administrator no later than 10 calendar days after completion 
of the transshipment. The report could be submitted without signatures 
to accommodate vessels that remain at sea for a substantial period of 
time and that might, for example, need to report the information needed 
on the form via radio to a shore agent because they do not have fax or 
email capabilities. This would enable NMFS to submit the report to the 
Commission within the 15-day due date under the CMM.
    The original, signed copy of the report would be submitted to the 
address specified on the form no later than 15 calendar days after the 
vessel first enters into port or 15 calendar days after the 
transshipment for emergency transshipments in port. For all other 
transshipments, if the vessel owner and operator is subject to current 
transshipment reporting requirements at 50 CFR part 300 subpart D, 50 
CFR part 660, or 50 CFR part 665, the transshipment report would be 
required to be submitted by the due date for submitting the original 
report specified in those regulations. If the vessel owner and operator 
are not subject to any of the current requirements, for transshipments 
at sea the report would be required to be submitted no later than 72 
hours after the vessel first enters into port; for transshipments in 
port, the report would be required to be submitted no later than 72 
hours after completion of the transshipment.
2. Prior Notice for High Seas Transshipments and Notice of Emergency 
Transshipments
    Under the current requirements at 50 CFR 300.216, transshipments at 
sea involving purse seine vessels are currently prohibited in the 
Convention Area. As discussed above, CMM 2009-06 also obligates CCMs to 
prohibit the transshipment at sea of HMS caught in the Convention area 
by purse seine vessels regardless of the location of the transshipment. 
Accordingly, the rule proposes to revise the regulations at 50 CFR 
300.216 to include that additional prohibition.
    For any transshipment of HMS on the high seas in the Convention 
Area or on the high seas anywhere of HMS caught in the Convention Area 
that are not prohibited (e.g., high seas transshipments by vessels 
other than purse seine vessels), vessel owners and operators would be 
required to ensure the submission to the Commission of notice of the 
transshipment, as specified in CMM 2009-06, at least 36 hours prior to 
the transshipment. The notice would be provided by fax or email, and 
would include the following information: (1) The name of the offloading 
vessel; (2) the vessel identification markings located on the hull or 
superstructure of the offloading vessel; (3) the name of the receiving 
vessel; (4) the vessel identification markings located on the hull or 
superstructure of the receiving vessel; (5) the expected amount, in 
metric tons, of the fish product being transshipped, broken down by 
species and processed state; (6) the expected date or dates of the 
transshipment; (7) the expected location of transshipment, including 
latitude and longitude to the nearest tenth of a degree; (8) an 
indication of which one of the following areas the expected 
transshipment location is situated--high seas inside the Convention 
Area, high seas outside the Convention Area, or an area under the 
jurisdiction of a particular nation--in which case the nation must be 
specified; and (9) the geographic location of the catch: The expected 
amount of HMS to be transshipped, in metric tons, that was caught in 
each of the following areas: Inside the Convention Area on the high 
seas, outside the Convention Area on the high seas, and within areas 
under the jurisdiction of a particular nation, with each such nation 
and the associated amount specified. Information regarding the 
geographic location of the catch is not required, however, if the 
reporting vessel is the receiving vessel. The transshipment would be 
required to take place within 24 nautical miles of the expected 
location provided in the notice.
    Notice would also be required for emergency transshipments that 
would otherwise be prohibited. An emergency transshipment would be 
defined as a transshipment conducted under circumstances of force 
majeure or other serious mechanical breakdown that could reasonably be 
expected to threaten the health or safety of the vessel or crew or 
cause a significant financial loss through fish spoilage. Each vessel 
owner or operator that qualifies for the emergency would be required to 
ensure the provision of the notice directly to the Commission by fax or 
email within 12 hours of completion of the transshipment and would be 
required to ensure the inclusion of the same information described 
above for the notice for high seas transshipments, as well as a 
description of the reasons for the emergency transshipment. The 
transshipment would be required to take place within 24 nautical miles 
of the location provided in the notice.
    This proposed rule would allow emergency transshipments involving 
purse seine vessels to take place at sea in the Convention Area; such 
transshipments are currently prohibited under the regulations. The 
current regulations implement Article 29, Paragraph 5 of the Convention 
and are intended to prohibit at sea transshipments by purse seine 
vessels operating in the Convention Area, subject to specific 
exemptions adopted by the WCPFC. CMM 2009-06 affirms the prohibition 
set forth at Article 29, Paragraph 5 of the Convention, requires

[[Page 8765]]

CCMs to prohibit transshipments at sea involving purse seine vessels of 
fish caught in the Convention Area but transshipped outside of the 
Convention Area, and sets forth specific exemptions for transshipment 
at sea by purse seine vessels, such as for an emergency.
    A copy of each notice would be required to be submitted to NMFS by 
the same due dates specified for submission to the Commission: at least 
36 hours prior to transshipment on the high seas or 12 hours after 
completion of an emergency transshipment.
3. Observer Coverage for Transshipments at Sea
    Transshipments at sea in the Convention Area would require observer 
coverage for vessels, with the specific requirements dependent upon the 
type of vessel and the type of fish to be transshipped. Observer 
coverage would not be required for emergency transshipments at sea 
(i.e., a transshipment conducted under circumstances of force majeure 
or other serious mechanical breakdown that could reasonably be expected 
to threaten the health or safety of the vessel or crew or cause a 
significant financial loss through fish spoilage). The observers would 
be required to be WCPFC Observers. Observers deployed by NMFS are 
currently considered WCPFC Observers, as the program has completed the 
required authorization process to become part of the WCPFC Regional 
Observer Programme (ROP). For most transshipments, an observer would be 
required on board the receiving vessel. However, for transshipments to 
a receiving vessel less than or equal to 33 meters in length, and not 
involving purse seine-caught fish or frozen longline-caught fish, the 
observer could be deployed on either the offloading vessel or receiving 
vessel. In addition, transshipments to receiving vessels greater than 
33 meters in length and involving only troll-caught or pole-and-line-
caught fish would not require an observer until January 1, 2013. All 
involved vessel owners and operators would need to ensure that a WCPFC 
Observer is on board one of the two vessels to monitor the 
transshipment for the duration of the transshipment, even when the 
requirement to carry an observer falls on the other vessel involved in 
the transshipment (e.g., the observer requirement is only for the 
receiving vessel). The owner or operator of a vessel requiring an 
observer for transshipments at sea would need to ensure that notice is 
provided to the NMFS Pacific Islands Regional Administrator at least 72 
hours (exclusive of weekends and Federal holidays) before the vessel 
leaves port on the fishing trip indicating the need for an observer. 
The notice would need to include the official number of the vessel, the 
name of the vessel, intended departure date, time and location, the 
name of the operator, and a telephone number at which the owner, 
operator, or a designated agent may be contacted during the business 
day (8 a.m. to 5 p.m. Hawaii Standard Time). If applicable, notice 
could be provided in conjunction with the notice required under 50 CFR 
665.803(a).
    Vessel owners, operators, and crew would be required to provide any 
WCPFC Observer on board with full access to their vessel during the 
transshipments, as well as access to information and data sources 
regarding the transshipment. CMM 2009-06 includes provisions for 
allowing observers full access to both the unloading and the receiving 
vessel and requires the WCPFC to develop guidelines for the safety of 
observers moving between vessels. NMFS intends to implement this 
provision of the CMM after the WCPFC develops and issues appropriate 
safety guidelines.
    CMM 2009-06 specifies that during transshipment, a receiving vessel 
must receive product from only one offloading vessel at a time for each 
observer that is available to monitor the transshipment; the observer 
may be on the offloading or receiving vessel. Accordingly, if only one 
WCPFC Observer is available, the receiving vessel would be able to 
receive HMS from only one offloading vessel at a time.
    The requirements described above would be implemented through 
amendments to the current WCPFC observer requirements for U.S. vessels 
set forth at 50 CFR 300.215 and to the regulations at 50 CFR 300.216.
4. Categories of Vessels With Which Transshipping and Bunkering May Be 
Conducted
    The owner and operator of any U.S. fishing vessel used for 
commercial fishing for HMS would be required to ensure that any vessel 
with which they engage in transshipment (to or from) in the Convention 
Area; or engage in bunkering or other support activities (to or from) 
in the Convention Area falls into one of the three of the following 
categories. The vessels must be: (1) Flagged by a WCPFC Member or 
Cooperating Non-Member; (2) on the Interim Register, which is available 
at http://www.wcpfc.int/; or (3) on the WCPFC Record of Fishing 
Vessels, which is available at http://www.wcpfc.int/. Only fishing 
vessels that are authorized to be used for fishing in the U.S. EEZ 
would be able to transship and/or bunker in the U.S. EEZ.
5. Requirements Regarding Notification of Entry Into and Exit From 
Eastern SMA
    The owner or operator of any U.S. fishing vessel used for 
commercial fishing would be required to ensure the submission of a 
notice to the Commission containing specific information at least six 
hours prior to entry and no later than six hours prior to exiting the 
Eastern SMA. The notices would be required to be submitted in the 
format specified by the NMFS Pacific Island Regional Administrator via 
fax or email and would include the following information: (1) The 
vessel identification markings located on the hull or superstructure of 
the vessel; (2) whether the notice is for entry or exit; (3) date and 
time of anticipated point of entry or exit; (4) latitude and longitude 
of anticipated point of entry or exit; (5) amount of fish product on 
board at the time of the report, in kilograms, in total and for each of 
the following species or species groups: Yellowfin tuna, bigeye tuna, 
albacore, skipjack tuna, swordfish, shark, other; and (6) an indication 
of whether the vessel has engaged in or will engage in any 
transshipments while in the Eastern SMA. A copy of the notice would be 
required to be provided to NMFS at least six hours prior to the entry 
and no later than six hours prior to the exit. As discussed in more 
detail in the IRFA, below, these requirements would overlap with 
current reporting requirements for U.S. purse seine vessels; the 
current requirements require notice to be provided every time a vessel 
enters or exits the EEZ of a Pacific Island Party to the Treaty.
6. Requirements Regarding Discards From Purse Seine Fishing Vessels
    The owner or operator of any U.S. purse seine fishing vessel would 
be required to ensure the submission of a report containing specific 
information to the Commission and a copy of the report to NMFS no later 
than 48 hours after any discard at sea of fish. The reports would be 
required to be submitted in the format specified by the NMFS Pacific 
Islands Regional Administrator via fax or email. A hard copy of the 
report would be required to be submitted to the observer on board the 
vessel. This report would overlap with current purse seine catch 
reporting requirements, as discussed in more detail below in the IRFA.

[[Page 8766]]

7. Other Requirements
    This proposed rule would prohibit the transfer of fish at sea from 
a purse seine net deployed by or under the control of a fishing vessel 
of the United States to another fishing vessel in the Convention Area. 
However, as discussed above, the proposed rule includes a narrow 
exception that would allow U.S. purse seine vessels to transfer fish 
through net sharing to other U.S. purse seine vessels on the final set 
of a trip when there is insufficient well space for the fish. The 
proposed rule would amend the current regulatory definition of 
transshipment to exclude net sharing from the definition as purse seine 
vessels are generally prohibited from engaging in transshipment of HMS 
at sea. Under the exception for net sharing, the purse seine vessel 
that transfers fish through net sharing would be prohibited from making 
further purse seine sets during the remainder of its fishing trip.
    Furthermore, in waters under the jurisdiction of the United States, 
net sharing would be allowed only between U.S. vessels that are 
authorized to be used for fishing in that area. In the event of a net 
share, the owner and operator of the vessel that caught the fish would 
record the catch, as required under 50 CFR 300.34(c)(1) on the Regional 
Purse Seine Logsheets (RPLs), and would also be required to note that 
the net sharing had taken place, in the manner specified by the NMFS 
Pacific Islands Regional Administrator, on the RPL. The owner and 
operator of the vessel that received the fish would also be required to 
note on the RPL that the net sharing had taken place, in the manner 
specified by the NMFS Pacific Islands Regional Administrator.
    In addition to the new requirements, the proposed rule would amend 
the language that is in 50 CFR 300.223(d) to remove the termination 
date (December 31, 2012) applicable to the current catch retention 
provision. The proposed rule would also correct 50 CFR 300.222(y), 
which is inconsistent with 50 CFR 300.223(d)(3). Section 300.223(d)(3) 
states that the catch retention requirements are applicable to the 
entire Convention Area. However, section 300.222(y) states that the 
prohibition on discarding fish at sea in contravention of section 
300.223(d) is limited to the high seas and areas within the 
jurisdiction of the United States, including the EEZ and territorial 
sea between 20[deg] N. latitude and 20[deg] S. latitude. This proposed 
rule would amend section 300.222(y) to amend the description of the 
requirement to state that the retention requirements are applicable to 
the entire Convention Area.
    The proposed rule would also include a minor change to the wording 
of the current language at 50 CFR 300.216(b) so that the terminology 
referring to U.S. purse seine vessels is consistent throughout 50 CFR 
300 Subpart O--the phrase ``purse seine fishing vessel of the United 
States'' would be replaced with ``fishing vessel of the United States 
equipped with purse seine gear.''
    As mentioned above, CMM 2009-06 requires CCMs to prohibit 
transshipments at sea involving purse seine vessels of fish caught in 
the Convention Area but transshipped outside of the Convention Area. 
Accordingly, the proposed rule would include this prohibition. The 
proposed rule would also allow emergency transshipments involving purse 
seine vessels to take place at sea in the Convention Area.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the WCPFC Implementation Act and other 
applicable laws, subject to further consideration after public comment.

Executive Order 12866

    The proposed rule was determined not to be significant for purposes 
of Executive Order 12866.

Regulatory Flexibility Act

    An IRFA was prepared, as required by section 603 of the RFA. The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained 
above in the SUMMARY section of the preamble and in other sections of 
this SUPPLEMENTARY INFORMATION section of the preamble, in particular, 
in the first few paragraphs of this section and in the section titled 
Proposed Action. The analysis follows:
    There would be no disproportionate economic impacts between small 
and large entities operating vessels as a result of this proposed rule. 
Furthermore, there would be no disproportionate economic impacts based 
on vessel size, gear, or homeport.
    The proposed rule would apply to owners and operators of U.S. HMS 
fishing vessels used to: (1) Transship HMS in the Convention Area or to 
transship outside the Convention Area HMS caught in the Convention 
Area; (2) enter or exit the Eastern SMA; or (3) purse seine for HMS in 
the Convention Area. The estimated number of affected entities is as 
follows, broken down by vessel type:
    Based on the number of longline vessels permitted to fish under the 
Fishery Ecosystem Plan for Pacific Pelagic Fisheries of the Western 
Pacific Region or the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species as of January 2011, the 
estimated number of longline vessels to which the rule would apply is 
170. Based on the number of purse seine vessels licensed under the 
South Pacific Tuna Treaty as of January 2011, the estimated number of 
purse seine vessels to which the rule would apply is 36. Based on the 
average annual number of albacore troll vessels that fished in the 
Convention Area during 2002-2009, the estimated number of troll vessels 
to which the rule would apply is 26. The total estimated number of 
vessels that would be subject to the rule is 232.
    Based on the best available financial information about the 
affected fishing fleets, and using individual vessels as proxies for 
individual businesses, NMFS believes that all the affected fish 
harvesting businesses in the longline and troll fleets are small 
entities as defined by the RFA; that is, they are independently owned 
and operated and not dominant in their fields of operation, and have 
annual receipts of no more than $4.0 million. In the purse seine fleet, 
most or all of the businesses that operate these vessels are large 
entities as defined by the RFA. However, it is possible that one or a 
few of these fish harvesting businesses meet the criteria for small 
entities, so the purse seine fleet is included in the remainder of this 
analysis.
    The reporting, recordkeeping and other compliance requirements of 
this proposed rule are described earlier in the preamble. The classes 
of small entities subject to the requirements and the types of 
professional skills necessary to fulfill the requirements are as 
follows:
    (1) Transshipment reporting: This requirement is part of a proposed 
collection of information subject to approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act (PRA). 
The requirement to complete and submit transshipment reports to NMFS 
would apply to the owners and operators of any vessel used to offload 
or receive a transshipment of HMS in the Convention Area or a 
transshipment outside the Convention Area of HMS caught in the 
Convention Area. Accordingly, it would apply to all the vessels 
identified above (170 longline, 36 purse seine, and 26 troll). It is 
estimated that each transshipment report would require about 60 minutes

[[Page 8767]]

of labor and $1 in communication costs for transmitting each report 
electronically and in hard copy to NMFS. The value of the required 
labor is estimated to be $60 per hour. The estimated cost of compliance 
is therefore about $61 per report. The estimated compliance costs per 
affected entity are described below, by vessel type:
    Each longline vessel is expected to transship between zero and 
approximately four times per year. The estimated annual cost of 
compliance is therefore between $0 for a vessel that does not transship 
to about $244 for a vessel that transships four times per year.
    Each purse seine vessel is expected, based on the U.S. purse seine 
fleet's transshipment patterns during 2008 and 2009, to transship 
between zero and approximately 19 times per year. The estimated annual 
cost of compliance is therefore between $0 for a vessel that does not 
transship to about $1,159 for a vessel that transships 19 times per 
year.
    Each troll vessel is expected to transship between zero and 
approximately two times per year. The estimated annual cost of 
compliance is therefore between $0 for a vessel that does not transship 
to about $122 for a vessel that transships two times per year.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    (2) Prior notice for high seas transshipments and emergency 
transshipments: This requirement is part of a proposed collection of 
information subject to approval by the Office of Management and Budget 
(OMB) under the PRA. The requirement to provide prior notice for 
transshipments would apply to the owners and operators of any vessel 
used for any transshipment on the high seas, as well as for any 
emergency at-sea transshipment that would be otherwise prohibited. 
Accordingly, it would apply to all the vessels identified above (170 
longline, 36 purse seine, and 26 troll). It is estimated that each 
transshipment notice would require about 15 minutes of labor and no 
more than $1 in communication costs. The value of the required labor is 
estimated to be $60 per hour. The estimated cost of compliance is 
therefore about $16 per notice. The estimated compliance costs per 
affected entity are described below, by vessel type:
    Each longline vessel is expected to transship on the high seas 
between zero and approximately four times per year. The estimated 
annual cost of compliance is therefore between $0 for a vessel that 
does not transship on the high seas to about $64 for a vessel that 
transships on the high seas four times per year.
    Purse seine vessels would not be allowed to transship at sea except 
under emergency situations. Each purse seine vessel is expected to 
transship at sea under emergency situations between zero and 
approximately one time per year. The estimated annual cost of 
compliance is therefore between $0 for a vessel that does not transship 
at sea to about $16 for a vessel that transships at sea once per year.
    Each troll vessel is expected to transship on the high seas between 
zero and approximately two times per year. The estimated annual cost of 
compliance is therefore between $0 for a vessel that does not transship 
on the high seas to about $32 for a vessel that transships on the high 
seas two times per year.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    (3) Observer coverage for transshipments at sea: This includes a 
requirement to carry a WCPFC observer on certain trips involving 
transshipments, as well as a requirement to notify NMFS in advance of 
such a trip so that an observer can be deployed on the vessel. The pre-
trip notification aspect is part of a proposed collection of 
information subject to approval by the OMB under the PRA. The remaining 
aspects of the requirement would not impose any new reporting or 
recordkeeping requirements (within the meaning of the PRA). These 
requirements would not apply to purse seine vessels because they are 
not allowed to transship at sea, and they generally would not apply to 
troll vessels because for transshipments involving troll-caught fish, 
an observer would in most cases be required on the receiving vessel, 
not the offloading vessel. If a U.S. troll vessel were used to receive 
a transshipment, then the requirements to notify NMFS in advance of the 
trip and to carry an observer would apply to the troll vessel, and if 
the receiving vessel were less than 33 meters in length, the required 
observer could be carried by either the offloading or receiving vessel. 
However, based on the history of the fishery, in which all recorded 
transshipments have been made to large foreign-flagged carriers, these 
cases are expected to be rare. Thus, except in rare cases, only the 
longline fleet would be subject to these requirements, and the 
estimated total number of affected entities is approximately 170, as 
described above.
    Pre-trip notification: It is estimated that each pre-trip 
notification would require 1 minute of labor and about $1 in 
communication costs. The value of the required labor is estimated to be 
$60 per hour. The estimated cost of compliance is therefore about $2 
per notification. Fishing vessel operators might not always know in 
advance of a fishing trip whether they will need or want to transship 
at sea during that trip. Consequently, they might sometimes make a pre-
trip notification, and carry a WCPFC observer, on trips that ultimately 
do not involve transshipments at sea. In other words, a pre-trip 
notification is expected to be made for each trip during which the 
fishing vessel operator wants to maintain the opportunity to transship 
at sea, and the number of such occasions might be greater than the 
number of fishing trips during which at-sea transshipments actually 
occur. The number of pre-trip notifications cannot be predicted with 
any certainty, but for the purpose of this analysis each longline 
vessel is expected to make a pre-trip notification between zero and 
approximately four times per year. The estimated annual cost of 
compliance is therefore between $0 for a vessel that does not make any 
pre-transshipment notifications to about $8 for a vessel that makes 
four pre-transshipment notifications per year.
    Requirement to carry observer: It is assumed that the Observer 
Program administered by NMFS will continue to be authorized by the 
WCPFC to be part of the WCPFC ROP. Thus, observers deployed by NMFS 
pursuant to regulations at 50 CFR Part 665 would be deemed to be WCPFC 
observers deployed in accordance with this new requirement. As such, 
vessel owners and operators would bear additional compliance costs 
under this requirement only in cases where an observer is required 
under this rule but a WCPFC or NMFS observer is not required under 
other regulations. For example, the shallow-set and deep-set sectors of 
the Hawaii longline fleet are subject to observer coverage rates of 100 
and approximately 20 percent (in terms of fishing trips), respectively. 
The compliance cost for a vessel that engages solely in shallow-set 
trips is therefore expected to be nil. For deep-setting vessels, on any 
given fishing trip during which a vessel operator wants to maintain the 
opportunity to transship at sea there is a 20 percent chance that an 
observer will be deployed under other regulations, in which case this 
new requirement would bring no new

[[Page 8768]]

compliance costs. If the vessel is used to offload a transshipment to a 
longline vessel that is on a declared shallow-set trip, the observer 
deployed on the receiving vessel would satisfy this proposed 
requirement, and again, the compliance cost for the offloading vessel 
(as well as for the receiving vessel) would be nil. It is not possible 
to project with any certainty the frequency or combinations of the trip 
types that longline vessels will be engaged in when they transship. For 
the purpose of estimating compliance costs here, it is roughly 
projected that any given longline vessel will request an observer 
between 0 and 4 fishing trips per year, and that the proposed observer 
requirement will be satisfied by current regulations (i.e., that there 
will be no new compliance costs) for 25 percent of those 0 to 4 fishing 
trips per year. In the remaining 75 percent of the cases; that is, for 
trips on which an observer is deployed under this new requirement, the 
affected entity would be responsible for the costs associated with 
providing the observer with food, accommodations, and medical 
facilities. These costs are expected to be about $20 per day (this is 
consistent with the amounts reimbursed by NMFS to owners of longline 
vessels for observer subsistence costs pursuant to 50 CFR 
665.808(i)(1)). Based on deep-set fishing trip lengths by the Hawaii 
longline fleet during 2009 and 2010, each affected longline fishing 
trip is expected to be about 24 days in duration, on average. The 
estimated annual cost of compliance for longline vessels is therefore 
between $0 for a vessel that does not request any observers to 
transship at sea to about $1,440 for a vessel that requests observers 
to transship at sea four times per year. As described above, vessels 
other than longline vessels would not be expected to bear any observer-
related compliance costs except in rare cases. In those cases, as for 
longline vessels, the direct cost of compliance is expected to be about 
$20 for each day that an observer is carried. In addition to the direct 
costs of accommodating observers, as described above, owners and 
operators of vessels that engage in transshipment would be responsible 
for ensuring that an observer is present, even when the requirement to 
carry an observer falls on the other vessel involved in the 
transshipment. This would bring indirect compliance costs. Vessel 
owners and operators would also be faced with having to decide in 
advance of any given trip whether or not to request an observer. 
Because they may not always know in advance of trip whether they will 
want or need to transship during that trip, having to decide in advance 
would be burdensome and bring indirect costs associated with the risk 
of making the ``wrong'' decision. The magnitude of these indirect 
compliance costs cannot be predicted.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    (4) Restrictions on vessels with which transshipping and bunkering 
may be conducted: This requirement would not impose any new reporting 
or recordkeeping requirements (within the meaning of the PRA). The 
requirement to transship with or be bunkered by a vessel only if such 
vessel is authorized in accordance with WCPFC decisions would apply to 
owners and operators of any vessel used for transshipment of HMS in the 
Convention Area. Accordingly, it would apply to all the vessels 
identified above (170 longline, 36 purse seine, and 26 troll). The 
costs of compliance are expected to be nil or minor because the 
requirement is not expected to be constraining. The vessels with which 
transshipping and bunkering may take place include any vessel flagged 
by a WCPFC Member or Cooperating Non-Member, vessels on the WCPFC 
Record of Fishing Vessels (i.e., any vessel authorized to be used for 
fishing in the Convention Area in areas outside the jurisdiction of its 
flag State (e.g., on the high seas or in the areas of jurisdiction of 
coastal States that are not the flag State)), and vessels on the 
Interim Register, placement on which requires a nomination by a member 
of the WCPFC and an annual fee of $2,500. It is expected to be a rare 
occurrence that a vessel other than those types would be active in the 
Convention Area.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    (5) Notice of entry or exit for the Eastern SMA: This requirement 
is part of a proposed collection of information subject to approval by 
the Office of Management and Budget (OMB) under the PRA. The 
requirement to provide notice in advance of each entry into and each 
exit out of the Eastern SMA would apply to the owners and operators of 
any vessel used for commercial fishing for HMS in the Convention Area 
or which has, or is required to have, a WCPFC Area Endorsement. 
Accordingly, it would apply to all the vessels identified above (170 
longline, 36 purse seine, and 26 troll). It is estimated that each 
notice would require about 15 minutes of labor and no more than $1 in 
communication costs. The value of the required labor is estimated to be 
$60 per hour. The estimated cost of compliance is therefore about $16 
per notice. The estimated compliance costs per affected entity are 
described below, by vessel type:
    Each longline vessel is expected to enter the Eastern SMA between 
zero and approximately four times per year (and exit the same number of 
times). The estimated annual cost of compliance is therefore between $0 
for a vessel that does not enter the pocket to about $128 for a vessel 
that enters the Eastern SMA four times per year and exits the Eastern 
SMA four times per year.
    Each purse seine vessel is expected to enter the Eastern SMA 
between zero and approximately two times per year (and exit the same 
number of times). The estimated annual cost of compliance is therefore 
between $0 for a vessel that does not enter the pocket to about $64 for 
a vessel that enters the Eastern SMA two times per year and exits the 
Eastern SMA two times per year.
    Each troll vessel is expected to enter the Eastern SMA between zero 
and approximately two times per year (and exit the same number of 
times). The estimated annual cost of compliance is therefore between $0 
for a vessel that does not enter the pocket to about $64 for a vessel 
that enters the Eastern SMA two times per year and exits the Eastern 
SMA two times per year.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    (6) Purse seine discard report: This requirement is part of a 
proposed collection of information subject to approval by the Office of 
Management and Budget (OMB) under the PRA. The requirement to submit a 
report to the WCPFC any time that tuna are discarded at sea would apply 
to the owners and operators of any purse seine vessel used for 
commercial fishing for HMS in the Convention Area. Accordingly, it 
would apply to an estimated 36 purse seine vessels, as identified 
above. It is estimated that each report would require about 30 minutes 
of labor and no more than $1 in communication costs. The value of the 
required labor is estimated to be $60 per hour. The estimated cost of 
compliance is therefore about $31 per report. Based on the purse seine 
fleet's discard patterns during 2008, the most recent year for which 
complete data are available, each purse seine vessel is expected to 
discard tuna at sea and have to report on such discards approximately 
17 times per

[[Page 8769]]

year, on average. The estimated annual cost of compliance is therefore 
$527 per vessel per year, on average.
    Fulfillment of this requirement is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    (7) Other requirements: The net-sharing restrictions and reporting 
requirement and the removal of the termination date (December 31, 2012) 
of the current catch retention requirements would not impose any new 
reporting or recordkeeping requirements (within the meaning of the 
PRA), but the net sharing reporting requirement would modify the 
information required to be reported under a current information 
collection (OMB control number 0648-0218). Specifically, when fish are 
shared, the owners and operators of both vessels involved would have to 
indicate on their respective catch report forms (also known as RPLs) 
that, for that set, a specified amount of fish were shared with a 
specified other vessel. This reporting requirement is not expected to 
add to the current reporting burden or bring other compliance costs.
    The proposed restrictions on net-sharing--specifically, that it may 
be done only on the last set and only between U.S. vessels, would apply 
to the owner and operator of any purse seine vessel used for commercial 
fishing for HMS in the Convention Area. Accordingly, it would apply to 
an estimated 36 purse seine vessels, as identified above. Because the 
main motivation for net sharing is to avoid discarding fish that cannot 
be accommodated in fish wells that are full, vessel operators are 
likely to want to net-share only on the last set. Accordingly, the 
last-set restriction is expected to bring little, if any, compliance 
costs. The restriction on net-sharing only between U.S. vessels would 
be constraining and therefore bring costs, but because data are not 
available on the frequency of net sharing or the flags of vessels with 
which net-sharing occurs, the magnitude of those costs cannot be 
predicted.
    Removing the termination date of the current catch retention 
requirements would bring an extension of the costs to purse seine 
fishing entities associated with having to fill well space with less 
valuable, and in some cases, unmarketable, product. Those costs cannot 
be quantified. The costs would likely be different for vessels that 
tend to operate out of Pago Pago and deliver their catch to the 
canneries in Pago Pago versus vessels that transship most of their 
catch to other vessels. For vessels in the former category, which have 
to steam relatively far from the fishing grounds in order to land their 
fish, a fishing trip typically only ends when the fish holds are full 
in order to maximize revenue during a given trip. Revenues and profits 
for these vessels are therefore strongly dependent on the size of their 
fish wells and on the value of fish per unit of well space. There have 
been occasions when the canneries have charged vessel operators to 
unload small fish. If that occurs with small fish that under this 
proposed rule are retained that otherwise would not be, vessel owners 
and operators would bear direct economic costs. For vessels that tend 
to transship their catches at ports near the fishing grounds, well 
space is a less important constraint on profits, so the economic 
impacts of this requirement on these vessels would likely be less.
    Fulfillment of these requirements is not expected to require any 
professional skills that the vessel owners and operators do not already 
possess.
    A number of Federal rules overlap with the proposed rule, as 
described below for each of the seven elements of the proposed rule:
    (1) Transshipment reporting requirements: For purse seine vessels, 
there are two current transshipment reporting requirements under the 
SPTA that overlap with the proposed reporting requirement in that much 
of the information required under the proposed report is already 
required under the current reports. The first requirement is at 50 CFR 
300.34(c)(2) and applies to all unloadings, including transshipments. 
The second is at 50 CFR 300.34(c)(9) and applies only to 
transshipments. The timing requirements and the recipients of the 
current and proposed reports differ in some respects. The proposed 
report would have to be submitted to the NMFS Pacific Islands Regional 
Administrator within 14 days after completion of the transshipment, 
except in the case of at-sea transshipments, which would be allowed 
only in specified emergency circumstances, and for which the report 
would have to be submitted to the NMFS Pacific Islands Regional 
Administrator within 10 days of completion of the transshipment. A copy 
of the current report under 50 CFR 300.34(c)(2) must be received by 
NMFS within two days of completion of the transshipment. In addition, 
the original report must be submitted to the FFA, as Treaty 
Administrator on behalf of the 16 Pacific Island Parties (PIP) to the 
Treaty, within 14 days of completion of the transshipment (this timing 
is consistent with the timing of the submission of the original of the 
proposed report). The current report under 50 CFR 300.34(c)(9) must be 
submitted to the FFA and to the PIP in whose jurisdiction the 
transshipment took place. It has no regulatory due date. The current 
reports would not fully satisfy the objectives of the proposed report--
that is, they do not collect all the information needed under WCPFC CMM 
2009-06. Furthermore, the two current reports under the SPTA must be 
sent in particular formats that are specified under the Treaty and 
cannot be changed in U.S. regulations unless and until the Treaty is 
amended accordingly. For these reasons, the proposed requirement not 
only overlaps with the two current SPTA reporting requirements but 
would also duplicate them to some extent, unless and until the Treaty 
is amended in such a way that the duplication can be removed.
    For longline vessels, the proposed reporting requirement overlaps 
with a current transshipment reporting requirement at 50 CFR 665.14(c). 
The current requirement applies only to vessels that receive longline-
caught fish and subsequently land or transship the fish in the western 
Pacific region. The timing and recipient of the proposed report would 
be the same as those for the current report (submit to the NMFS Pacific 
Islands Regional Administrator within 72 hours of the vessel reaching 
port after the transshipment). The form used for the proposed 
requirement would be designed to accommodate the current requirement 
and would replace the form used for the current requirement, so 
although the two requirements would overlap, there would be no 
duplication in the reporting burden.
    For troll vessels, the proposed reporting requirement overlaps with 
a current transshipment reporting requirement at 50 CFR 660.708(a), 
which is for catch and effort reporting generally and applies to 
operators of HMS fishing vessels operating for commercial fishing in 
the portion of the EEZ off the U.S. west coast and in adjacent high 
seas areas. The current reporting form used by albacore troll fishermen 
requires that the date, receiving vessel, and amount transshipped be 
recorded for any at-sea transshipment. The timing of the proposed 
report would be the same as that for the current report (submit to NMFS 
within 30 days of the transshipment). The proposed requirement would 
satisfy the current reporting requirement, but because the current 
requirement applies to a much larger group of fishermen than the 
proposed requirement, and because the transshipment-related information 
required under the current report is

[[Page 8770]]

relatively limited and a small part of the catch/effort reporting form, 
it would not be practical to remove the duplication in the two 
requirements.
    (2) Prior notice for high seas transshipments and emergency 
transshipments: For purse seine vessels only, the current requirement 
under the SPTA to provide notification in advance of each transshipment 
(50 CFR 300.34(c)(5)) overlaps with the proposed pre-transshipment 
notification requirement, but only in the case of emergency at-sea 
transshipments (because purse seine vessels are not allowed to 
transship at sea otherwise). The substance, timing, and recipients of 
the proposed and current notifications differ. Because of these 
differences, it would not be practical to remove the duplication 
between the two notification requirements.
    (3) Observer coverage for transshipments at sea: The pre-trip 
notification aspect of this proposed requirement, which, except in rare 
cases would apply only to longline vessels, overlaps with an current 
pre-trip notification requirement for longline vessels at 50 CFR 
665.803(a). The current requirement applies in the case of all fishing 
trips, and is used by NMFS in part to notify the vessel operator 
whether the vessel must carry an observer on that trip (observers are 
deployed according to a sampling scheme). The proposed notification 
would apply only in the case that a vessel operator wants to carry an 
observer in order to maintain the opportunity to transship at sea on a 
given fishing trip. Thus, although the two requirements would overlap, 
there would be no duplication in the substance of the reports. 
Furthermore, the timing and format of the proposed requirement would be 
such that vessel operators could provide the proposed notification at 
the same time (e.g., during the same phone call) that they provide the 
current notification. For vessel types other than longline vessels, no 
duplicating, overlapping or conflicting Federal regulations have been 
identified.
    The proposed requirement that vessels carry an observer in certain 
situations involving transshipments would overlap for longline vessels 
with current observer requirements at 50 CFR 665.808 (for longline 
vessels) and 50 CFR 300.215 (for vessels used to fish for HMS on the 
high seas in the Convention Area). The proposed requirement would be 
such that carrying an observer under any of the current observer 
requirements would satisfy the proposed requirement, so there would be 
no duplication among the requirements. For purse seine vessels and 
troll vessels, there would be no overlapping, duplicative, or 
conflicting requirements except in the expectedly rare case that a 
troll vessel would be required to carry an observer, in which case the 
proposed requirement overlaps with the requirements at 50 CFR 660.719 
(for west coast HMS vessels) and 50 CFR 300.215 (for vessels used to 
fish for HMS on the high seas in the Convention Area). Regarding the 
latter regulation, compliance with the current requirement would 
satisfy the proposed requirement, so there would be no duplication in 
the requirements. Under the former regulation, west coast-based troll 
vessels must carry NMFS observers when directed to do so by NMFS, but 
NMFS has not been deploying any observers on troll vessels under that 
requirement. However, because observers deployed by NMFS are currently 
considered WCPFC observers, as the program has completed the required 
authorization process to become part of the WCPFC ROP, this proposed 
requirement would not duplicate that requirement--the same observer 
could be used to fulfill both requirements.
    (4) Restrictions on vessels with which transshipping and bunkering 
may be conducted: No duplicating, overlapping or conflicting Federal 
regulations have been identified.
    (5) Notice of entry or exit for Eastern SMA: For purse seine 
vessels only, the current requirement under the SPTA to provide 
notification upon entry or exit into the EEZ of any PIP (50 CFR 
300.34(c)(6)) overlaps with the proposed notification requirement, but 
only for those EEZs that border the Eastern SMA; that is, the EEZs of 
Kiribati, Cook Islands, and French Polynesia. The information required 
in the two notifications differs slightly. The current notification 
does not have a specific timing requirement. The recipients of the two 
notifications differ in that the current one must be sent to an 
authority of the relevant PIP while the proposed notification would 
have to be sent to the WCPFC and to NMFS. The current notification 
cannot be modified in any way unless and until the Treaty is amended 
accordingly, so the current notification could not be used to satisfy 
this proposed notification requirement, nor vice versa, so there would 
be some duplication between the two requirements.
    For vessel types other than purse seine vessels, no duplicating, 
overlapping or conflicting Federal regulations have been identified.
    (6) Purse seine discard report: This reporting requirement, which 
would apply only to purse seine vessels, would overlap with a current 
SPTA reporting requirement at 50 CFR 300.34(c)(1). The current 
requirement to maintain and submit ``catch report forms,'' also known 
as ``Regional Purse Seine Logsheets'' or ``RPLs'', calls for 
information on fishing effort and catches, including information on the 
amount of fish, by species, that is discarded each day, including the 
reason for each such discard. The timing requirements and the 
recipients of the current and proposed reports differ in some respects. 
The proposed report would have to be submitted to the WCPFC and to NMFS 
within 48 hours after each discard event. The current report must be 
submitted to and received by NMFS within two days after the vessel next 
reaches port. In addition, it must be submitted to the FFA, as Treaty 
Administrator on behalf of the PIP, within 14 days after the vessel 
next reaches port. Furthermore, the current report must be sent on a 
particular form that is specified under the Treaty and cannot be 
changed in U.S. regulations unless and until the Treaty is amended 
accordingly. Because of these differences, the proposed requirement not 
only overlaps with the current SPTA requirement but would also 
duplicate it to a large extent, unless and until the Treaty is amended 
in such a way that the duplication can be removed.
    (7) Net-sharing restrictions and reporting: No duplicating, 
overlapping or conflicting Federal regulations have been identified.
    NMFS has attempted to identify alternatives that would accomplish 
the objectives of the Act and minimize any significant economic impact 
of the proposed rule on small entities. The alternative of taking no 
action at all was rejected because it would fail to accomplish the 
objectives of the WCPFC Implementation Act. As a Contracting Party to 
the Convention, the United States is required to implement the 
decisions of the WCPFC. Consequently, NMFS has limited discretion as to 
how to implement those decisions.
    With respect to element (1), transshipment reporting requirements, 
one alternative would be to impose a uniform timeframe for submission 
of the report; to satisfy all current requirements and the provisions 
of CMM 2009-06, it would have to be submitted to NMFS within 10 
calendar days after completion of the transshipment. This would be more 
burdensome than the proposed requirement for certain types of fishing 
vessels and is not preferred for that reason. NMFS has not identified 
any alternatives that would be less burdensome than the proposed

[[Page 8771]]

requirement and that would accomplish the objectives of the WCPFC 
Implementation Act.
    With respect to element (2), prior notice for high seas 
transshipments and emergency transshipments, one alternative would be 
to give affected entities the option of either providing the notice of 
high seas transshipment to NMFS at least one business day plus 36 hours 
in advance of the transshipment (i.e., 60 hours before the 
transshipment), or, as under the proposed rule, providing the notice 
directly to the WCPFC at least 36 hours in advance of the 
transshipment, with a copy to NMFS. This flexibility could relieve the 
burden for some entities and/or situations; specifically, in cases 
where it is less burdensome to send the notification to NMFS than to 
the WCPFC. Under this alternative, if a vessel operator exercises the 
first option, NMFS would have to forward the notification to the WCPFC 
within one business day, so this alternative would bring some 
additional administrative costs to NMFS. This alternative would also 
have the disadvantage of being more complex and possibly more confusing 
to affected entities than the proposed rule (under which there would be 
a single timeframe and single recipient). For these reasons, and 
because NMFS believes that the benefits of the flexibility afforded to 
affected entities by this alternative would be minor, this alternative 
is not preferred.
    With respect to element (3), observer coverage for transshipments 
at sea, NMFS has not identified any alternatives that would be less 
burdensome than the proposed requirement and that would accomplish the 
objectives of the WCPFC Implementation Act. The only action alternative 
considered for this element is the alternative being proposed in this 
rule.
    With respect to element (4), restrictions on vessels with which 
transshipping and bunkering may be conducted, NMFS has not identified 
any alternatives that would be less burdensome than the proposed 
requirement and that would accomplish the objectives of the WCPFC 
Implementation Act. The only action alternative considered for this 
element is the alternative being proposed in this rule.
    With respect to element (5), notice of entry or exit for Eastern 
SMA, NMFS has not identified any alternatives that would be less 
burdensome than the proposed requirement and that would accomplish the 
objectives of the WCPFC Implementation Act. The only action alternative 
considered for this element is the alternative being proposed in this 
rule.
    With respect to element (6), the purse seine discard report, NMFS 
has not identified any alternatives that would be less burdensome than 
the proposed requirement and that would accomplish the objectives of 
the WCPFC Implementation Act. The only action alternative considered 
for this element is the alternative being proposed in this rule.
    With respect to element (7), net-sharing restrictions and 
reporting, one alternative would be to allow U.S. to net-share to 
foreign-flagged vessels, and a second would be to allow U.S. vessels to 
net-share both to and from foreign vessels. Under both these 
alternatives, net-sharing would be allowed only on the last set. 
Alternatives to allow net-sharing on other than the last set would not 
be consistent with WCPFC decisions, so were not considered. Both 
alternatives identified above would be less restrictive than the 
proposed rule and thus bring lower compliance costs. The first 
alternative would make it difficult to ensure consistent counting of 
catches--for example, the shared catch might be logged as catch by both 
the U.S. catcher vessel and the foreign vessel with which the catch is 
shared. The alternative is not preferred for that reason. The second 
alternative would have the same shortcoming and would also be very 
difficult to enforce, as the United States would have limited ability 
to determine whether a foreign vessel complied with the last-set 
condition. The alternative is not preferred for those reasons.
    For each element, NMFS also considered the no-action alternative, 
or status quo situation in which the provisions of the proposed rule 
would not be implemented. However, as stated above, the no-action 
alternative would not accomplish the objectives of the WCPFC 
Implementation Act and was rejected for that reason.

Paperwork Reduction Act

    This proposed rule contains collection-of-information requirements 
subject to review and approval by the OMB under the PRA. These 
requirements have been submitted to the OMB for approval. The public 
reporting burdens for each of the requirements are estimated as 
follows: Transshipment reporting: 60 minutes per response, on average; 
prior notice for high seas transshipments and emergency transshipments: 
15 minutes per response, on average; pre-trip notification for the 
purpose of deploying observers: 1 minute per response, on average; 
notice of entry or exit for Eastern SMA: 15 minutes per response, on 
average; purse seine discard report: 30 minutes per response, on 
average. These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the proposed collection of information to 
Michael D. Tosatto, Regional Administrator, NMFS PIRO (see ADDRESSES), 
and by email to [email protected] or fax to 202-395-7285.
    This proposed rule also contains a collection-of-information 
requirement subject to the PRA that has been approved by OMB under 
control number 0648-0218, ``South Pacific Tuna Act'' (the net-sharing 
reporting requirement). The public reporting burden for the Catch 
Report Form under that collection-of-information is estimated to 
average one hour per response, including 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 this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to Michael D. Tosatto, Regional 
Administrator, NMFS PIRO (see ADDRESSES) and by email to [email protected] 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.

List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Fish, Fisheries, Fishing, 
Marine resources, Reporting and recordkeeping requirements, Treaties.


[[Page 8772]]


    Dated: February 9, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is 
proposed to be amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    1. The authority citation for 50 CFR part 300, subpart O, continues 
to read as follows:

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

    2. In Sec.  300.211, definitions of ``Cooperating Non-Member,'' 
``Eastern High Seas Special Management Area,'' ``Net sharing,'' ``On 
board,'' ``WCPFC Interim Register of non-Member Carrier and Bunker 
Vessels,'' and ``WCPFC Record of Fishing Vessels'' are added, in 
alphabetical order, and the definition of ``Transshipment'' is revised, 
to read as follows:


Sec.  300.211  Definitions.

* * * * *
    Cooperating Non-Member means a non-Member of the Commission that 
has been accorded Cooperating Non-Member status by the Commission at 
the Commission's most recent annual meeting.
    Eastern High Seas Special Management Area means the area of the 
high seas within the area bounded by the four lines connecting, in the 
most direct fashion, the coordinates specified as follows: 11[deg] S. 
latitude and 161[deg] W. longitude; 11[deg] S. latitude and 154[deg] W. 
longitude; 16[deg] S. latitude and 154[deg] W. longitude; and 16[deg] 
S. latitude and 161[deg] W. longitude.
* * * * *
    Net sharing means the transfer of fish that have not yet been 
loaded on board any fishing vessel from the purse seine net of one 
vessel to another fishing vessel. Fish shall be considered to be on 
board a fishing vessel once they are on a deck or in a hold, or once 
they are first lifted out of the water by the vessel.
* * * * *
    Transshipment means the unloading of fish from on board one fishing 
vessel and its direct transfer to, and loading on board, another 
fishing vessel, either at sea or in port. Fish shall be considered to 
be on board a fishing vessel once they are on a deck or in a hold, or 
once they are first lifted out of the water by the vessel. Net sharing 
is not a transshipment.
* * * * *
    WCPFC Interim Register of Non-Member Carrier and Bunker Vessels 
means, for the purposes of this subpart, the WCPFC Interim Register of 
non-Member Carrier and Bunker Vessels as established in the decisions 
of the WCPFC and maintained on the WCPFC's Web site at http://www.wcpfc.int/.
* * * * *
    WCPFC Record of Fishing Vessels means, for the purposes of this 
subpart, the WCPFC Record of Fishing Vessels as established in the 
decisions of the WCPFC and maintained on the WCPFC's Web site at http://www.wcpfc.int/.
* * * * *
    3. Section 300.215 is revised to read as follows:


Sec.  300.215  Observers.

    (a) Applicability. This section applies to the following categories 
of fishing vessels:
    (1) Any fishing vessel of the United States with a WCPFC Area 
Endorsement.
    (2) Any fishing vessel of the United States for which a WCPFC Area 
Endorsement is required.
    (3) Any fishing vessel of the United States used for commercial 
fishing that receives or offloads in the Convention Area a 
transshipment of HMS at sea.
    (b) Notifications. The owner or operator of a vessel required to 
carry a WCPFC observer under Sec.  300.215(d) during a given fishing 
trip must ensure the provision of notice to the Pacific Islands 
Regional Administrator at least 72 hours (exclusive of weekends and 
Federal holidays) before the vessel leaves port on the fishing trip, 
indicating the need for an observer. The notice must be provided to the 
office or telephone number designated by the Pacific Islands Regional 
Administrator and must include the official number of the vessel, the 
name of the vessel, the intended departure date, time, and location, 
the name of the operator of the vessel, and a telephone number at which 
the owner, operator, or a designated agent may be contacted during the 
business day (8 a.m. to 5 p.m. Hawaii Standard Time). If applicable, 
notice may be provided in conjunction with the notice required under 
Sec.  665.803(a) of this title.
    (c) Accommodating observers. (1) Fishing vessels specified in 
paragraphs (a)(1) and (a)(2) of 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 paragraphs (c)(3), (c)(4), and (c)(5) of this section 
with respect to any WCPFC observer.
    (2) Fishing vessels specified in paragraph (a)(3) of this section 
must carry an observer when required to do so under Sec.  300.215(d). 
The operator and each member of the crew of the fishing vessel shall 
act in accordance with paragraphs (c)(3), (c)(4), and (c)(5) of this 
section with respect to any WCPFC observer.
    (3) 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 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.
    (4) 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.
    (5) 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) Transshipment observer coverage--(1) Receiving vessels. Any 
fishing vessel of the United States used for commercial fishing that 
receives in the Convention Area a transshipment of HMS at sea must have 
a WCPFC observer on board during such transshipment unless at least one 
of the following sets of conditions applies:
    (i) The vessel is less than or equal to 33 meters in registered 
length, the transshipment does not include any fish caught by purse 
seine gear, the transshipment does not include any frozen fish caught 
by longline gear, and, during the transshipment, there is a WCPFC 
observer on board the vessel that offloads the transshipment;

[[Page 8773]]

    (ii) Prior to January 1, 2013, the vessel is greater than 33 meters 
in registered length and the transshipment is only of fish caught by 
troll gear and/or pole-and-line gear;
    (iii) The transshipment takes place entirely within the territorial 
seas or archipelagic waters of any nation, as defined by the domestic 
laws and regulations of that nation and recognized by the United 
States, and only includes fish caught in such waters; or
    (iv) The transshipment is an emergency, as specified under Sec.  
300.216(b)(4).
    (2) Offloading vessels. Any fishing vessel of the United States 
used for commercial fishing that offloads a transshipment of HMS at sea 
in the Convention Area must have a WCPFC observer on board, unless one 
or more of the following conditions apply:
    (i) The vessel that receives the transshipment has a WCPFC observer 
on board;
    (ii) The vessel that receives the transshipment is greater than 33 
meters in registered length;
    (iii) The transshipment includes fish caught by purse seine gear;
    (iv) The transshipment includes frozen fish caught by longline 
gear;
    (v) The transshipment takes place entirely within the territorial 
seas or archipelagic waters of any nation, as defined by the domestic 
laws and regulations of that nation and recognized by the United 
States, and only includes fish caught in such waters; or
    (vi) The transshipment is an emergency, as specified under Sec.  
300.216(b)(4).
    (e) Related observer requirements. Observers deployed by NMFS 
pursuant to regulations issued under other statutory authorities on 
vessels used for fishing for HMS in the Convention Area will be deemed 
by NMFS to have been deployed pursuant to this section.
    4. Section 300.216 is revised to read as follows:


Sec.  300.216  Transshipping, bunkering and net sharing.

    (a) Transshipment monitoring. [Reserved]
    (b) Restrictions on transshipping and bunkering.
    (1) Restrictions on transshipments involving purse seine fishing 
vessels.
    (i) Fish may not be transshipped from a fishing vessel of the 
United States equipped with purse seine gear 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 fishing vessel equipped with 
purse seine gear at sea in the Convention Area.
    (ii) Fish caught in the Convention Area may not be transshipped 
from a fishing vessel of the United States equipped with purse seine 
gear at sea, and a fishing vessel of the United States may not be used 
to receive a transshipment of fish caught in the Convention Area from a 
fishing vessel equipped with purse seine gear at sea.
    (2) Restrictions on at-sea transshipments. If a transshipment takes 
place entirely within the territorial seas or archipelagic waters of 
any nation, as defined by the domestic laws and regulations of that 
nation and recognized by the United States, and only includes fish 
caught within such waters, this paragraph does not apply.
    (i) The owner and operator of a fishing vessel of the United States 
used for commercial fishing that offloads or receives a transshipment 
of HMS at sea in the Convention Area must ensure that a WCPFC observer 
is on board at least one of the vessels involved in the transshipment 
for the duration of the transshipment, unless the vessel receiving the 
transshipment is subject to the provisions of Sec.  300.215(d)(1)(ii).
    (ii) A fishing vessel of the United States used for commercial 
fishing that receives transshipments of HMS at sea in the Convention 
Area shall not receive such transshipments from more than one vessel at 
a time unless there is a separate WCPFC observer available on either 
the offloading or receiving vessel to monitor each additional 
transshipment.
    (3) General restrictions on transshipping and bunkering--
    (i) Transshipment. Only fishing vessels that are authorized to be 
used for fishing in the EEZ may engage in transshipment in the EEZ. Any 
fishing vessel of the United States used for commercial fishing shall 
not be used to offload or receive a transshipment of HMS in the 
Convention Area unless:
    (A) The other vessel involved in the transshipment is flagged to a 
Member or Cooperating Non-Member of the Commission;
    (B) The other vessel involved in the transshipment is on the WCPFC 
Record of Fishing Vessels;
    (C) The other vessel involved in the transshipment is on the WCPFC 
Interim Register of Non-Member Carrier and Bunker Vessels; or
    (D) The transshipment takes place entirely within the territorial 
seas or archipelagic waters of any nation, as defined by the domestic 
laws and regulations of that nation and recognized by the United 
States, and only includes fish caught within such waters.
    (ii) Bunkering, supplying and provisioning. Only fishing vessels 
that are authorized to be used for fishing in the EEZ may engage in 
bunkering in the EEZ. A fishing vessel of the United States used for 
commercial fishing for HMS shall not be used to provide bunkering, to 
receive bunkering, or to exchange supplies or provisions with another 
vessel in the Convention Area unless:
    (A) The other vessel involved in the bunkering or exchange of 
supplies or provisions is flagged to a Member or a Cooperating Non-
Member of the Commission;
    (B) The other vessel involved in the bunkering or exchange of 
supplies or provisions is on the WCPFC Record of Fishing Vessels; or
    (C) The other vessel involved in the bunkering or exchange of 
supplies or provisions is on the WCPFC Interim Register of Non-Member 
Carrier and Bunker Vessels.
    (4) Emergency transshipments. The restrictions in paragraphs 
(b)(1), (b)(2), and (b)(3)(i) of this section shall not apply to a 
transshipment conducted under circumstances of force majeure or other 
serious mechanical breakdown that could reasonably be expected to 
threaten the health or safety of the vessel or crew or cause a 
significant financial loss through fish spoilage.
    (c) Net sharing restrictions. (1) The owner and operator of a 
fishing vessel of the United States shall not conduct net sharing in 
the Convention Area unless all of the following conditions are met:
    (i) The vessel transferring the fish is a fishing vessel of the 
United States equipped with purse seine gear;
    (ii) The vessel transferring the fish has insufficient well space 
for the fish;
    (iii) The vessel transferring the fish engages in no additional 
purse seine sets during the remainder of the fishing trip; and
    (iv) The vessel accepting the fish is a fishing vessel of the 
United States equipped with purse seine gear.
    (2) Only fishing vessels of the United States that are authorized 
to be used for fishing in the EEZ may engage in net sharing in the EEZ, 
subject to the provisions of paragraph (c)(1) of this section.
    5. In Sec.  300.218, paragraph (b) is revised and paragraphs (c), 
(d), (e) and (f) are added to read as follows:


Sec.  300.218  Reporting and recordkeeping requirements.

* * * * *
    (b) Transshipment reports. The owner and operator of any fishing 
vessel of the

[[Page 8774]]

United States used for commercial fishing that offloads or receives a 
transshipment of HMS in the Convention Area, or a transshipment 
anywhere of HMS caught in the Convention Area, must ensure that a 
transshipment report for the transshipment is completed, using a form 
that is available from the Pacific Islands Regional Administrator, and 
recording all the information specified on the form. The owner and 
operator of the vessel must ensure that the transshipment report is 
completed and signed within 24 hours of the completion of the 
transshipment, and must ensure that the report is submitted as follows:
    (1) For vessels licensed under Sec.  300.32, the original 
transshipment report is submitted to the address specified by the 
Pacific Islands Regional Administrator by the due date specified at 
Sec.  300.34(c)(2) for submitting the transshipment logsheet form to 
the Administrator as defined at Sec.  300.31.
    (2) For vessels registered for use under Sec.  660.707 of this 
title, the original transshipment report is submitted to the address 
specified by the Pacific Islands Regional Administrator by the due date 
specified for the logbook form at Sec.  660.708 of this title.
    (3) For vessels subject to the requirements of Sec.  665.14(c) and 
Sec.  665.801(e) of this title, and not subject to the requirements of 
paragraphs (b)(1) or (b)(2) of this section, the original transshipment 
report is submitted to the address specified by the Pacific Islands 
Regional Administrator by the due date specified at Sec.  665.14(c) of 
this title for submitting transshipment logbooks to the Pacific Islands 
Regional Administrator for landings of western Pacific pelagic 
management unit species.
    (4) For all transshipments on the high seas and emergency 
transshipments that meet the conditions described in Sec.  
300.216(b)(4), including transshipments involving the categories of 
vessels specified in paragraphs (b)(1), (b)(2), and (b)(3) of this 
section, the report is submitted by fax or email to the address 
specified by the Pacific Islands Regional Administrator no later than 
10 calendar days after completion of the transshipment. The report may 
be submitted with or without signatures so long as the original 
transshipment report with signatures is submitted to the address 
specified by the Pacific Islands Regional Administrator no later than 
15 calendar days after the vessel first enters into port or 15 calendar 
days after completion of the transshipment for emergency transshipments 
in port.
    (5) For all other transshipments at sea, the original transshipment 
report is submitted to the address specified by the Pacific Islands 
Regional Administrator no later than 72 hours after the vessel first 
enters into port.
    (6) For all other transshipments in port, the original 
transshipment report is submitted to the address specified by the 
Pacific Islands Regional Administrator no later than 72 hours after 
completion of the transshipment.
    (c) Exceptions to transshipment reporting requirements. Paragraph 
(b) of this section shall not apply to a transshipment that takes place 
entirely within the territorial seas or archipelagic waters of any 
nation, as defined by the domestic laws and regulations of that nation 
and recognized by the United States, and only includes fish caught 
within such waters.
    (d) Transshipment notices--(1) High seas transshipments. The owner 
and operator of a fishing vessel of the United States used for 
commercial fishing that offloads or receives a transshipment of HMS on 
the high seas in the Convention Area, or a transshipment of HMS caught 
in the Convention Area anywhere on the high seas, and not subject to 
the requirements of paragraph (d)(2) of this section, must ensure that 
a notice is submitted to the Commission by fax or email at least 36 
hours prior to the start of such transshipment at the address specified 
by the Pacific Islands Regional Administrator, and that a copy of that 
notice is submitted to NMFS at the address specified by the Pacific 
Islands Regional Administrator at least 36 hours prior to the start of 
the transshipment. The notice must be reported in the format provided 
by the Pacific Islands Regional Administrator and must contain the 
following information:
    (i) The name of the offloading vessel.
    (ii) The vessel identification markings located on the hull or 
superstructure of the offloading vessel.
    (iii) The name of the receiving vessel.
    (iv) The vessel identification markings located on the hull or 
superstructure of the receiving vessel.
    (v) The expected amount, in metric tons, of fish product to be 
transshipped, broken down by species and processed state.
    (vi) The expected date or dates of the transshipment.
    (vii) The expected location of the transshipment, including 
latitude and longitude to the nearest tenth of a degree.
    (viii) An indication of which one of the following areas the 
expected transshipment location is situated: high seas inside the 
Convention Area; high seas outside the Convention Area; or an area 
under the jurisdiction of a particular nation, in which case the nation 
must be specified.
    (ix) The expected amount of HMS to be transshipped, in metric tons, 
that was caught in each of the following areas: inside the Convention 
Area, on the high seas; outside the Convention Area, on the high seas; 
and within areas under the jurisdiction of particular nations, with 
each such nation and the associated amount specified. This information 
is not required if the reporting vessel is the receiving vessel.
    (2) Emergency transshipments. The owner and operator of a fishing 
vessel of the United States used for commercial fishing for HMS that 
offloads or receives a transshipment of HMS in the Convention Area, or 
a transshipment of HMS caught in the Convention Area anywhere, that is 
allowed under Sec.  300.216(b)(4) but would otherwise be prohibited 
under the regulations in this subpart, must ensure that a notice is 
submitted by fax or email to the Commission at the address specified by 
the Pacific Islands Regional Administrator and a copy is submitted to 
NMFS at the address specified by the Pacific Islands Regional 
Administrator within twelve hours of the completion of the 
transshipment. The notice must be reported in the format provided by 
the Pacific Islands Regional Administrator and must contain the 
following information:
    (i) The name of the offloading vessel.
    (ii) The vessel identification markings located on the hull or 
superstructure of the offloading vessel.
    (iii) The name of the receiving vessel.
    (iv) The vessel identification markings located on the hull or 
superstructure of the receiving vessel.
    (v) The expected or actual amount, in metric tons, of fish product 
transshipped, broken down by species and processed state.
    (vi) The expected or actual date or dates of the transshipment.
    (vii) The expected or actual location of the transshipment, 
including latitude and longitude to the nearest tenth of a degree.
    (viii) An indication of which one of the following areas the 
expected or actual transshipment location is situated: high seas inside 
the Convention Area; high seas outside the Convention Area; or an area 
under the jurisdiction of a particular nation, in which case the nation 
must be specified.
    (ix) The amount of HMS to be transshipped, in metric tons, that was 
caught in each of the following areas: inside the Convention Area, on 
the high seas; outside the Convention Area, on

[[Page 8775]]

the high seas; and within areas under the jurisdiction of particular 
nations, with each such nation and the associated amount specified. 
This information is not required if the reporting vessel is the 
receiving vessel.
    (x) The reason or reasons for the emergency transshipment (i.e., a 
transshipment conducted under circumstances of force majeure or other 
serious mechanical breakdown that could reasonably be expected to 
threaten the health or safety of the vessel or crew or cause a 
significant financial loss through fish spoilage).
    (3) Location of high seas and emergency transshipments. A high seas 
or emergency transshipment in the Convention Area or of HMS caught in 
the Convention Area anywhere subject to the notification requirements 
of paragraph (d)(1) or (d)(2) must take place within 24 nautical miles 
of the location for the transshipment indicated in the notice submitted 
under paragraph (d)(1)(vii) or (d)(2)(vii) of this section.
    (e) Purse seine discard reports. The owner and operator of any 
fishing vessel of the United States equipped with purse seine gear must 
ensure that a report of any at-sea discards of any bigeye tuna (Thunnus 
obesus), yellowfin tuna (Thunnus albacares), or skipjack tuna 
(Katsuwonus pelamis) caught in the Convention Area is completed, using 
a form that is available from the Pacific Islands Regional 
Administrator, and recording all the information specified on the form. 
The report must be submitted within 48 hours after any discard to the 
Commission by fax or email at the address specified by the Pacific 
Islands Regional Administrator. A copy of the report must be submitted 
to NMFS at the address specified by the Pacific Islands Regional 
Administrator by fax or email within 48 hours after any such discard. A 
hard copy of the report must be provided to the observer on board the 
vessel, if any.
    (f) Net sharing reports--(1) Transferring vessels. The owner and 
operator of a fishing vessel of the United States equipped with purse 
seine gear that transfers fish to another fishing vessel equipped with 
purse seine gear under Sec.  300.216(c) shall ensure that the amount, 
by species, of fish transferred, as well as the net sharing activity, 
is recorded on the catch report forms maintained pursuant to Sec.  
300.34(c)(1), in the format specified by the Pacific Islands Regional 
Administrator.
    (2) Accepting vessels. The owner and operator of a fishing vessel 
of the United States equipped with purse seine gear that accepts fish 
from another purse seine fishing vessel under Sec.  300.216(c) shall 
ensure that the net sharing activity is recorded on the catch report 
forms maintained pursuant to Sec.  300.34(c)(1), in the format 
specified by the Pacific Islands Regional Administrator.
    6. In Sec.  300.222, paragraph (y) is revised and paragraphs (ee), 
(ff), (gg), (hh), (ii), (jj), (kk), (ll), (mm) (nn), (oo), (pp), and 
(qq) are added to read as follows:


Sec.  300.222  Prohibitions.

* * * * *
    (y) Discard fish at sea in the Convention Area in contravention of 
Sec.  300.223(d).
* * * * *
    (ee) Fail to carry on board a WCPFC observer during a transshipment 
at sea, as required in Sec.  300.215(d).
    (ff) Offload, receive, or load fish caught in the Convention Area 
from a purse seine vessel at sea in contravention of Sec.  300.216.
    (gg) Fail to ensure that a WCPFC observer is on board at least one 
of the vessels involved in the transshipment for the duration of the 
transshipment in contravention of Sec.  300.216(b)(2)(i), except as 
specified at Sec.  300.216(b)(4).
    (hh) Receive transshipments from more than one fishing vessel at a 
time in contravention of Sec.  300.216(b)(2)(ii), except as specified 
at Sec.  300.216(b)(4).
    (ii) Transship to or from another vessel, in contravention of Sec.  
300.216(b)(3)(i), except as specified at Sec.  300.216(b)(4).
    (jj) Provide bunkering, receive bunkering, or exchange supplies or 
provisions with another vessel, in contravention of Sec.  
300.216(b)(3)(ii).
    (kk) Engage in net sharing except as specified under Sec.  
300.216(c).
    (ll) Fail to submit, or ensure submission of, a transshipment 
report as required in Sec.  300.218(b), except as specified under Sec.  
300.218(c).
    (mm) Fail to submit, or ensure submission of, a transshipment 
notice as required in Sec.  300.218(d).
    (nn) Transship more than 24 nautical miles from the location 
indicated in the transshipment notice, in contravention of Sec.  
300.218(d)(3).
    (oo) Fail to submit, or ensure submission of, a discard report as 
required in Sec.  300.218(e).
    (pp) Fail to submit, or ensure submission of, a net sharing report 
as required in Sec.  300.218(f).
    (qq) Fail to submit, or ensure submission of, an entry or exit 
notice for the Eastern High Seas Special Management Area as required in 
Sec.  300.225.
    7. In Sec.  300.223, paragraph (d)(3) introductory text is revised 
to read as follows:


Sec.  300.223  Purse seine fishing restrictions.

* * * * *
    (d) * * *
    (3) An owner and operator of a fishing vessel of the United States 
equipped with purse seine gear must ensure the retention on board at 
all times while at sea within the Convention Area any bigeye tuna 
(Thunnus obesus), yellowfin tuna (Thunnus albacares), or skipjack tuna 
(Katsuwonus pelamis), except in the following circumstances and with 
the following conditions:
    8. Section 300.225 is added to read as follows:


Sec.  300.225  Eastern High Seas Special Management Area.

    (a) Entry notices. The owner and operator of a fishing vessel of 
the United States used for commercial fishing for HMS must ensure the 
submission of a notice to the Commission at the address specified by 
the Pacific Islands Regional Administrator by fax or email at least six 
hours prior to entering the Eastern High Seas Special Management Area. 
The owner or operator must ensure the submission of a copy of the 
notice to NMFS at the address specified by the Pacific Islands Regional 
Administrator by fax or email at least six hours prior to entering the 
Eastern High Seas Special Management Area. The notice must be submitted 
in the format specified by the Pacific Island Regional Administrator 
and must include the following information:
    (1) The vessel identification markings located on the hull or 
superstructure of the vessel;
    (2) Date and time (in UTC) of anticipated point of entry;
    (3) Latitude and longitude, to nearest tenth of a degree, of 
anticipated point of entry;
    (4) Amount of fish product on board at the time of the notice, in 
kilograms, in total and for each of the following species or species 
groups: yellowfin tuna, bigeye tuna, albacore, skipjack tuna, 
swordfish, shark, other; and
    (5) An indication of whether the vessel intends to engage in any 
transshipments prior to exiting the Eastern High Seas Special 
Management Area.
    (b) Exit notices. The owner and operator of a fishing vessel of the 
United States used for commercial fishing for HMS must ensure the 
submission of a notice to the Commission at the address specified by 
the Pacific Islands Regional Administrator by fax or email no later 
than six hours prior to exiting the Eastern High Seas Special 
Management Area. The owner or operator must ensure the submission of a 
copy of the notice to NMFS at the address specified

[[Page 8776]]

by the Pacific Islands Regional Administrator by fax or email no later 
than six hours prior to exiting the Eastern High Seas Special 
Management Area. The notices must be submitted in the format specified 
by the Pacific Island Regional Administrator and must include the 
following information:
    (1) The vessel identification markings located on the hull or 
superstructure of the vessel.
    (2) Date and time (in UTC) of anticipated point of exit.
    (3) Latitude and longitude, to nearest tenth of a degree, of 
anticipated point of exit.
    (4) Amount of fish product on board at the time of the notice, in 
kilograms, in total and for each of the following species or species 
groups: yellowfin tuna, bigeye tuna, albacore, skipjack tuna, 
swordfish, shark, other; and
    (5) An indication of whether the vessel has engaged in or will 
engage in any transshipments prior to exiting the Eastern High Seas 
Special Management Area.

[FR Doc. 2012-3546 Filed 2-14-12; 8:45 am]
BILLING CODE 3510-22-P