[Federal Register Volume 77, Number 232 (Monday, December 3, 2012)]
[Rules and Regulations]
[Pages 71501-71513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29028]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 300

[Docket No. 110209128-2641-02]
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: Final rule.

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SUMMARY: NMFS issues 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 also apply to transshipments of 
fish caught in the area of application of the Convention (Convention 
Area) and transshipped elsewhere. NMFS also issues 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: This rule is effective January 2, 2013.

ADDRESSES: Copies of supporting documents that were prepared for this 
final rule, including the regulatory impact review (RIR) and the 
Environmental Assessment (EA), as well as the proposed rule, are 
available via the Federal e-Rulemaking portal, at http://www.regulations.gov. Those documents, and the small entity compliance 
guide(s) prepared for this final rule, are also available from NMFS at 
the following address: Michael D. Tosatto, Regional Administrator, NMFS 
Pacific Islands Regional Office (PIRO), 1601 Kapiolani Blvd., Suite 
1110, Honolulu, HI 96814-4700. The initial regulatory flexibility 
analysis (IRFA) and final regulatory flexibility analysis (FRFA) 
prepared under the authority of the Regulatory Flexibility Act (RFA) 
are included in the proposed rule and this final rule, respectively.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to 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: 

 Background

    On February 15, 2012, NMFS published a proposed rule in the Federal 
Register (77 FR 8759) to revise regulations at 50 CFR part 300, subpart 
O, in order to implement certain decisions of the WCPFC. The proposed 
rule was open to public comment through April 16, 2012.
    This final rule is issued under the authority of the WCPFC 
Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the 
Secretary of Commerce, in consultation with the Secretary of State and 
the Secretary of the Department in which the United States Coast Guard 
is operating (currently the Department of Homeland Security), to 
promulgate such regulations as may be necessary to carry out the 
obligations of the United States under the Convention, including the 
decisions of the WCPFC. The authority to promulgate regulations has 
been delegated to NMFS.
    This final rule implements provisions in Conservation and 
Management Measures (CMMs) adopted by the WCFPC, particularly CMMs 
2009-06, 2009-01, 2010-02, and 2009-02. The preamble to the proposed 
rule includes further background information, including information on 
the Convention and the WCPFC, as well as detailed information about 
each of the CMMs being implemented in this rule, and the basis for the 
proposed regulations.

New Requirements

    This final rule establishes the following requirements:

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 vessel or to a 
receiving vessel, or that transships HMS caught in the Convention Area, 
whether from an offloading vessel or to a receiving vessel, is required 
to ensure the completion of and submission to NMFS of a transshipment 
report for each transshipment. The form required to be used for these 
reports is available from the NMFS Pacific Islands Regional 
Administrator. A separate report is required for each transshipment.
    The information specified on the report form must be recorded on 
the form within 24 hours of completion of the transshipment. The 
requirements for transshipments on the high seas and for emergency 
transshipments (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) 
that would otherwise be prohibited are slightly different than the 
requirements for all other transshipments. For transshipment on the 
high seas and for emergency transshipments that would otherwise be 
prohibited, the report must be submitted by email or fax to the address 
specified by the NMFS Pacific Islands Regional Administrator no later 
than 10 calendar days after completion of the transshipment. The report 
can be submitted without signatures to accommodate vessels that remain 
at sea for more than 10 days after completion of the transshipment and 
that do not have fax or email capabilities. In such circumstances, for 
example, the information required on the form could be communicated via 
radio to a shore agent, and the shore agent could email or fax the form 
to NMFS within the 10-day deadline, which would enable NMFS to submit 
the report to the Commission within the 15-day due date under CMM 2009-
06.
    The original, signed copy of the report for high seas or emergency

[[Page 71502]]

transshipments must 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 (i.e., transshipments that do not take 
place on the high seas and that are not emergency transshipments), if 
the transshipment is subject to transshipment reporting requirements in 
50 CFR part 300 subpart D, 50 CFR part 660, or 50 CFR part 665, the 
original transshipment report must be submitted by the due date for 
submitting the transshipment reports specified in those regulations. If 
the vessel owner and operator are not subject to any of the above-
referenced transshipment reporting requirements, for transshipments at 
sea the report must be submitted no later than 72 hours after the 
vessel first enters into port; for transshipments in port, the report 
must be submitted no later than 72 hours after completion of the 
transshipment. These reporting requirements do not apply to 
transshipments that take 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 include fish caught within such waters.
    As noted in the preamble to the proposed rule, NMFS has developed a 
specific form, the Pacific Transshipment Declaration Form, to be used 
for the transshipment reporting requirements.

2. Prior Notice for High Seas Transshipments and Notice of Emergency 
Transshipments

    For any transshipment of HMS on the high seas in the Convention 
Area or on the high seas anywhere of HMS that were caught in the 
Convention Area that is not prohibited (e.g., high seas transshipments 
by vessels other than purse seine vessels), vessel owners and operators 
must ensure the submission to the Commission of notice of the 
transshipment at least 36 hours prior to the transshipment. The notice 
must be provided by fax or email in the format specified by the NMFS 
Pacific Islands Regional Administrator as specified in this rule. The 
notice must 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 to be 
transshipped, as described by: 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 must take place within 24 
nautical miles of the expected location provided in the notice.
    Notice is also required for emergency transshipments that would 
otherwise be prohibited. For each transshipment that qualifies as an 
emergency transshipment, the owner or operator of the offloading and 
receiving vessels must ensure delivery of the notice directly to the 
Commission by fax or email within 12 hours of completion of the 
transshipment, and must ensure the notice includes the same information 
described above for the notice for high seas transshipments, as well as 
a description of the reasons for the emergency transshipment, in the 
format specified by the NMFS Pacific Islands Regional Administrator. 
The transshipment must take place within 24 nautical miles of the 
location provided in the notice.
    This final rule allows emergency transshipments involving purse 
seine vessels to take place at sea in the Convention Area. Such 
transshipments were prohibited prior to the effective date of this 
final rule (see 50 CFR 300.216).
    A copy of each notice must be submitted to NMFS by the same due 
dates specified for submission to the Commission: That is, at least 36 
hours prior to the start of such transshipment on the high seas or 
within 12 hours after completion of an emergency transshipment.

3. Observer Coverage for Transshipments at Sea

    Transshipments at sea in the Convention Area 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 is not required for emergency transshipments at sea or for 
transshipments that take 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. The observers are 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 is required on 
board the receiving vessel. However, for transshipments to a receiving 
vessel less than or equal to 33 meters in registered length, and not 
involving purse seine-caught fish or frozen longline-caught fish, the 
observer may be deployed on either the offloading vessel or receiving 
vessel. All involved vessel owners and operators are required 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., in those cases when the observer requirement 
applies only to the receiving vessel). The owner or operator of a 
vessel requiring an observer for transshipments at sea must ensure that 
notice is provided to the NMFS Pacific Islands Regional Administrator 
at least 72 hours (excluding weekends and Federal holidays) before the 
vessel leaves port on the fishing trip indicating the need for an 
observer. The notice will need to include the official number of the 
vessel, the name of the vessel, the intended date, time and location of 
departure, the name of the vessel operator, and a telephone number at 
which the vessel owner, vessel operator, or a designated agent may be 
contacted during the business day (8 a.m. to 5 p.m. Hawaii Standard 
Time). The notice must be provided to the office or telephone number 
designated by the NMFS Pacific Islands Regional Administrator. If 
applicable, notice may be provided in conjunction with the notice 
required under 50 CFR 665.803(a), which requires the permit holder, or 
designated agent, for any

[[Page 71503]]

vessel registered for use under a Hawaii longline limited access 
permit, or for any vessel greater than 40 feet length overall that is 
registered for use under an American Samoa longline limited access 
permit, to notify NMFS at least 72 hours (excluding weekends and 
Federal holidays) before the vessel leaves port on a fishing trip, any 
part of which occurs in the U.S. EEZ around the Hawaiian Archipelago or 
American Samoa.
    In addition, 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 must receive HMS from only one offloading vessel 
at a time.
    Operators and crew members of vessels carrying observers under 
these requirements are subject to general requirements regarding WCPFC 
Observers at 50 CFR 300.215, such as providing any WCPFC Observer on 
board the vessel with full access to the vessel, as well as access to 
information and data sources.

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 must 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 following categories. The vessel must 
be: (1) Flagged by a WCPFC Member or Cooperating Non-Member; (2) on the 
WCPFC Interim Register of Non-Member Carrier and Bunker Vessels 
(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/. NMFS notes that the Interim Register is tentatively 
scheduled to expire in 2013, at which point no vessels would fall in 
this category. Only fishing vessels that are authorized to be used for 
fishing in the U.S. EEZ may transship and/or bunker in the U.S. EEZ. 
These requirements for transshipments do not apply to emergency 
transshipments or transshipments that take 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 include fish caught within such waters.

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 must 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 (see 
Figure 1, below). The notices must be submitted in the format specified 
by the NMFS Pacific Islands Regional Administrator. The notices must be 
submitted via fax or email and must 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 must be provided to NMFS at least six 
hours prior to the entry and no later than six hours prior to the exit.
    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 71504]]

[GRAPHIC] [TIFF OMITTED] TR03DE12.000

6. Requirements Regarding Discards From Purse Seine Fishing Vessels

    The owner or operator of any U.S. purse seine fishing vessel must 
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 bigeye tuna (Thunnus obesus), yellowfin 
tuna (Thunnus albacares), or skipjack tuna (Katsuwonus pelamis). The 
reports must be submitted in the format specified by the NMFS Pacific 
Islands Regional Administrator via fax or email. A specific form, the 
U.S. Purse Seine Discard Form (OMB Control Number 0648-0649), has been 
developed for this requirement. A hard copy of the report must be 
submitted to the observer on board the vessel.

7. Other Requirements

    This final rule prohibits 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 any other fishing vessel in the Convention Area. 
However, the rule includes a narrow exception that allows U.S. purse 
seine vessels to transfer fish through 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) to other 
U.S. purse seine vessels on the final set of a trip when there is 
insufficient well space for the fish. The final rule also amends the 
regulatory definition of transshipment to exclude net sharing from the 
definition of transshipment 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 is prohibited from making further purse seine sets 
during the remainder of its fishing trip.
    Furthermore, in the U.S. EEZ, net sharing is 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 must record the catch, as required under 50 CFR 
300.34(c)(1), on the Regional Purse Seine Logsheet (RPL), and must note 
that the net sharing has taken place, in the manner specified by the 
NMFS Pacific Islands Regional Administrator, on the RPL. The owner and 
operator of the vessel that accepted the fish must note on the RPL for 
their vessel that the net sharing has taken place, in the manner 
specified by the NMFS Pacific Islands Regional Administrator.
    In addition to the new requirements, the final rule amends the 
language that is in 50 CFR 300.223(d) to remove the termination date 
(December 31, 2012) applicable to the catch retention provision and 
includes some editorial changes to that language (i.e., from stating 
that ``a fishing vessel of the United States equipped with purse seine 
gear may not discard at sea within the Convention Area any bigeye tuna, 
yellowfin tuna, or skipjack tuna'' to stating that ``an owner or 
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, yellowfin tuna, or skipjack 
tuna''). The final rule also corrects 50 CFR 300.222(y), which was 
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, Sec.  300.222(y), which is a prohibitions 
section, stated that the prohibition on discarding fish at sea in 
contravention of Sec.  300.223(d) is limited to the high seas and areas 
within the jurisdiction of the United States, including the U.S. EEZ 
and territorial sea between 20[deg] N. latitude and 20[deg] S. 
latitude. This final rule amends Sec.  300.222(y) to amend the 
description of the requirement to state that the catch retention 
requirements are applicable to the entire Convention Area.

[[Page 71505]]

    The final rule also includes a minor change to the wording of the 
language at 50 CFR 300.216(b) so that the terminology referring to U.S. 
purse seine vessels is consistent throughout 50 CFR part 300 subpart O. 
Specifically, the phrase ``purse seine fishing vessel of the United 
States'' is replaced with ``fishing vessel of the United States 
equipped with purse seine gear.''
    The final rule also modifies the prohibitions for at-sea 
transshipments for purse seine vessels. The final rule includes an 
additional prohibition for transshipments at sea involving purse seine 
vessels of fish caught in the Convention Area but transshipped outside 
of the Convention Area, and allows emergency transshipments involving 
purse seine vessels to take place at sea in the Convention Area.

Comments and Responses

    NMFS received one comment letter on the proposed rule, with three 
distinct comments. Each comment is summarized below, followed by a 
response from NMFS.

Comment 1

    The basis for the prohibitions on net sharing provided in the 
proposed rule--that it would be difficult to keep track of fish--seems 
insufficient. The purse seine vessel receiving the fish would likely 
report the fish, since it would have the best estimate of the amount in 
the net share. It is also unclear how commonly net sharing among purse 
seine vessels takes place. If this is a matter of serious concern, a 
better explanation of the need for the prohibitions should be given. It 
would be worthwhile to exempt the transfer of live fish from one 
fishing vessel to another from this prohibition. Although vessels 
fishing in the eastern Pacific Ocean (EPO) will not likely be subject 
to these prohibitions on a frequent basis, in the past, there has been 
some confusion, since corrected, as to whether the prohibition on 
transshipping in the area of application of the IATTC applies to the 
transfer of live bluefin tuna.

Response

    As stated in the proposed rule, existing regulations at 50 CFR 
300.223(d) require U.S. purse seine fishing vessels to retain all catch 
of bigeye tuna, yellowfin tuna, and skipjack tuna 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. Existing regulations at 50 CFR 300.216 prohibit purse 
seine vessels from conducting transshipments at sea in the Convention 
Area, consistent with Article 29 of the Convention. However, the 
existing catch retention provisions at 50 CFR 223(d) do not address 
whether net sharing falls within the definition of transshipment, which 
is prohibited at sea for purse seine vessels. As stated in Section 
3.1.1.1 of the EA, NMFS estimates that approximately 10 percent of all 
U.S. purse seine trips in the WCPO include a net sharing event. This 
rule explicitly excludes net sharing activities from the definition of 
transshipment and implements a general prohibition on net sharing, as 
net sharing in most situations would not be consistent with the catch 
retention requirements.
    However, the rule allows U.S. purse seine fishing vessels to 
conduct limited net sharing on the final set of a trip with other U.S. 
purse seine vessels, 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.'' As stated in the IRFA, NMFS considered 
the alternatives of allowing U.S. purse seine fishing vessels to 
conduct net sharing with foreign-flagged vessels, and allowing U.S. 
purse seine fishing vessels to conduct net sharing both to and from 
foreign-flagged vessels on the last set of the transferring vessel's 
trip. Alternatives to allow net sharing on other than the last set 
would be inconsistent with CMM 2008-01, so were not considered. 
However, allowing net sharing to foreign-flagged vessels 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-flagged vessel with which the catch is shared, 
resulting in inaccurate reporting. Allowing net sharing to and from 
foreign-flagged vessels would have the same shortcomings and would also 
be very difficult to enforce, as the United States would have limited 
ability to determine whether a foreign-flagged vessel complied with the 
last-set condition.
    Regarding the commenter's recommendation to generally exempt the 
transfer of live fish from one vessel to another, net sharing of live 
fish on the final set of trip between U.S. purse seine fishing vessels 
is not prohibited under the new rule.
    Finally, the net sharing requirements in this rule are applicable 
in the Convention Area, and do not apply in the EPO.

Comment 2

    Regarding the projected costs for observer coverage for 
transshipments at sea, a refrigerated carrier vessel that operates 
regularly in the Convention Area would likely have an observer on 
board, so the observer coverage requirements for troll vessels 
transshipping on the high seas would likely be covered. However, if a 
troll vessel wants to transship on the high seas to a carrier that is 
not already active in the Convention Area, the projected cost of the 
observer requirements does not include the following cost estimates: 
(1) Cost in time and money to see that such a refrigerated carrier is 
properly registered; and (2) the cost of travel to get an observer 
accepted by the ROP of the WCPFC to and from the transshipping point. 
Although this may be seen as a business cost for transshipping, it is 
still a substantial cost that may well fall on the troll or pole-and-
line vessels, and should at least be factored into the cost estimates.

Response

    Should a U.S. troll or pole-and-line vessel desire to transship to 
a foreign-flagged carrier vessel that is not already active in the 
Convention Area, and if the owner of the carrier vessel chooses to make 
the carrier vessel available for such transshipments by satisfying the 
various applicable WCPFC requirements, NMFS agrees that some of the 
costs of doing so could be passed on to fishing businesses that 
interact with the carrier vessel, such as the U.S. troll or pole-and-
line fishing business. Such costs include the $2,500 annual fee for 
registering a vessel on the Interim Register, the costs associated with 
participating in the WCPFC vessel monitoring system, and the costs 
associated with carrying WCPFC ROP observers, possibly including travel 
costs for the observer. NMFS notes that the cost of transporting a 
WCPFC Observer would depend on the circumstances, and could be minimal 
if a WCPFC Observer is available at the carrier vessel's port of 
departure and does not need further transportation from the port of 
return. NMFS also notes that the Interim Register is tentatively 
scheduled to expire in 2013. If some or all these costs are passed on 
by the owner/operator of the carrier vessel to fishing businesses that 
make use of the carrier vessel, NMFS expects that carrier vessels would 
be likely to work with multiple offloading vessels and would distribute 
the costs accordingly. The costs borne by any single U.S. troll or

[[Page 71506]]

pole-and-line fishing business would be accordingly smaller than the 
total costs. NMFS has revised the RIR to acknowledge and reflect these 
possible costs incurred by U.S. fishing businesses. This comment is 
also relevant in the context of the FRFA, as discussed in the 
Classification section of this preamble.

Comment 3

    Regarding the notification of entry and exit to and from the 
Eastern SMA, the system set up for this entry and exit notification 
scheme is fatally flawed under international law, because States 
bordering a high seas pocket have no more right to know what is going 
on there than other Commission members. If Kiribati, Cook Islands and 
French Polynesia are to receive special notifications, those 
notifications should be made to the Commission and be available to all 
Commission members.
    While few, if any, U.S. albacore troll and pole-and-line vessels 
fish in the Eastern SMA, this area is close to various transit lines. 
That area is right along the track line going from Papeete, French 
Polynesia, to Majuro, Marshall Islands--both are important ports for 
the South Pacific albacore troll fishery. In the past, vessels in this 
fishery transshipped their fish in Papeete and then proceeded directly 
to Majuro for fueling before heading to fishing grounds in the North 
Pacific. Historically, as many as a dozen vessels made that circuit. 
The Eastern SMA is also very close to the track line going from Pago 
Pago, American Samoa, to Papeete. There is also a history of vessels 
proceeding from the South Pacific fishing grounds to Honolulu, and the 
Eastern SMA is near that track line. Thus, the proposed rule 
underestimates the frequency of U.S. troll and pole and line vessels 
transiting the Eastern SMA and associated costs.

Response

    NMFS notes the commenter's view that the system set up by the 
Commission for the Eastern SMA is flawed. This comment appears to be a 
general comment on the Commission's decision to adopt CMM 2010-02, 
which is beyond the scope of this rulemaking. The Commission exercised 
its authority pursuant to the Convention to adopt conservation and 
management measures for the high seas, which are implemented by 
members, including, where appropriate, by flag State members, in 
accordance with their jurisdiction and control over vessels flying 
their flag on the high seas. To the extent the comment alleges that 
NMFS' implementation of the notification scheme provided for in this 
final rule is inconsistent with international law, NMFS disagrees. In 
order to meet the international obligations of the United States as a 
member of the Commission, and pursuant to the authority of the WCPFC 
Implementation Act, NMFS is implementing this provision of CMM 2010-02 
via regulations. NMFS is unaware of any provisions of international law 
that this rulemaking would violate.
    NMFS appreciates the additional information regarding the 
operational activity of the U.S. albacore troll and pole-and-line 
vessels near the Eastern SMA. However, the comment does not include any 
indication of the historical or current number of Eastern SMA entries 
and exits by such vessels on an annual basis. In the RIR issued with 
the proposed rule and in the IRFA, NMFS estimated that U.S. albacore 
troll vessels would enter the Eastern SMA between zero and two times 
per year and exit the same number of times. This estimate was based on 
readily available data regarding the fishing patterns of the fleet, 
indicating that the fishing grounds of this fleet are and have been in 
areas distant from the Eastern SMA. In order to take into consideration 
the commenter's information, NMFS has evaluated (unpublished) data from 
NMFS' vessel monitoring system (VMS) to determine the precise annual 
number of Eastern SMA entries and exits by vessels in this fleet. The 
VMS data indicate that U.S. albacore troll vessels entered the Eastern 
SMA zero times during 2011 and 2012 (2011 was the first full year in 
which U.S. albacore troll vessels fishing in the Convention Area were 
required to participate in the vessel monitoring system).
    Given these recent data and the location of the traditional fishing 
grounds of the U.S. albacore troll fleet, NMFS believes that the 
estimate of zero to two entries per year (and zero to two exits per 
year) is reasonable and an appropriate basis on which to estimate the 
costs to the U.S. albacore troll fleet to satisfy the Eastern SMA entry 
and exit notification requirements. NMFS acknowledges that there has 
been limited activity by the albacore troll fleet in the Convention 
Area in recent years (see Table 10 in the EA indicating that the number 
of U.S. albacore troll vessels operating in the South Pacific each year 
has numbered no more than six since 2007). Should the activity of the 
U.S. albacore troll fleet in the Convention Area return to the greater 
levels experienced in the past and should that increased activity 
include use of the historic lines of transit mentioned in the comment, 
the number and associated costs of the entry and exit notifications may 
be higher, possibly affecting as many as a dozen vessels each year, as 
noted by the commenter, or more. Although such a future scenario is 
possible, it, like other possible future scenarios, is speculative and 
does not warrant changes to the estimates used by NMFS as a basis to 
estimate the costs to affected U.S. fishing fleets.

Changes From the Proposed Rule

    NMFS made some minor technical and non-substantive changes to the 
proposed rule in this final rule to remove ambiguities. Also, given the 
effective date the final rule, the provision that the at-sea observer 
provisions do not apply to transshipments to receiving vessels greater 
than 33 meters in registered length and involving only fish caught by 
troll gear and/or pole-and-line gear prior to January 1, 2013, has been 
removed. Due to an editorial error, the proposed rule indicated that a 
new, separate definition would be provided for the term ``on board.'' 
However, the definition of ``on board'' was included in the revised 
definition of transshipment and in the definition of net sharing in the 
proposed rule, which remain the same in this final rule. Also, although 
the regulatory text in the proposed rule specified that the purse seine 
discard reports would be required for discards of bigeye tuna, 
yellowfin tuna, or skipjack tuna, the proposed rule's preamble 
incorrectly indicated that discards of fish, in general, would need to 
be reported. In addition, although the regulatory text in the proposed 
rule specified the editorial changes to the purse seine catch retention 
requirement, the proposed rule's preamble did not mention these 
editorial changes (i.e., from stating that ``a fishing vessel of the 
United States equipped with purse seine gear may not discard at sea 
within the Convention Area any bigeye tuna, yellowfin tuna, or skipjack 
tuna'' to stating that ``an owner or 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, yellowfin tuna, or skipjack tuna'').
    In Sec.  902.1(b) of title 15 of the Code of Federal Regulations, 
which includes a table listing control numbers issues by the Office of 
Management and Budget (OMB) for collections of information required 
under NOAA regulations, new entries have been added for the OMB control 
numbers approved for the information collections required under

[[Page 71507]]

Sec. Sec.  300.215, 300.218, and 300.225 of title 50 of the Code of 
Federal Regulations.

Delegation of Authority

    Under NOAA Administrative Order 205-11, dated December 17, 1990, 
the under Secretary of Oceans and Atmosphere has delegated authority to 
sign material for publication in the Federal Register to the Assistant 
Administrator for Fisheries, NOAA.

Classification

    The Administrator, Pacific Islands Region, NMFS, has determined 
that this final rule is consistent with the WCPFC Implementation Act 
and other applicable laws.

Executive Order 12866

    The final rule has been determined not to be significant for 
purposes of Executive Order 12866.

Regulatory Flexibility Act

    A FRFA was prepared. The FRFA incorporates the IRFA prepared for 
the proposed rule. The analysis in the IRFA is not repeated here in its 
entirety.
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the preamble of the 
proposed rule and in the SUMMARY and SUPPLEMENTARY INFORMATION sections 
of this final rule, above. The analysis follows:
    There would be no disproportionate economic impacts between small 
and large entities operating vessels as a result of this final rule. 
Furthermore, there would be no disproportionate economic impacts based 
on vessel size, gear, or homeport.

Significant Issues Raised by Public Comments in Response to IRFA

    NMFS received two comments related to the IRFA (see Comments 2 and 
3 on the proposed rule, above). Regarding Comment 2, NMFS agrees with 
the commenter that U.S. fishing businesses could bear costs associated 
with transshipping to foreign-flagged carrier vessels that are not 
already active in the Convention Area, and that this should be factored 
into the estimated compliance costs. See NMFS' Response to Comment 2 on 
the proposed rule, above, for a description of those possible costs. 
NMFS has also revised the RIR to reflect those possible costs. 
Regarding Comment 3, NMFS acknowledges the additional information about 
the historical activity of U.S. albacore troll and pole-and-line 
vessels near the Eastern SMA, as well as the possibility that the 
future rate of entries into and exits out of the Eastern SMA by U.S. 
albacore troll vessels, and the associated costs, could be greater than 
the estimates provided in the IRFA. However, NMFS believes that the 
estimate in the IRFA of zero to two entries per year (and zero to two 
exits per year) is reasonable, based on readily available information 
regarding the fishing patterns of the fleet and recent VMS data, and an 
appropriate basis for the cost estimates. See NMFS' Response to Comment 
3 on the proposed rule, above, for further details. NMFS has not made 
any changes to the rule as a result of these two comments.
Description of Small Entities to Which the Rule Will Apply
    The final rule will 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 will 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 will 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 will 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.

Reporting, Recordkeeping, and Other Compliance Requirements

    The reporting, recordkeeping, and other compliance requirements 
under this 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 each of the requirements are 
described in the IRFA.

Steps Taken To Minimize the Significant Economic Impact on Small 
Entities

    NMFS has attempted to identify alternatives that would accomplish 
the objectives of the Act and minimize any significant economic impact 
of the final 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. For some of the elements where the CMMs provide 
discretion in implementation, NMFS has identified specific 
alternatives, as described below. For the other elements, NMFS has not 
identified alternatives. However, for each of the elements where 
alternatives have not been identified, NMFS has developed the element 
to be the least burdensome on small entities, while still being in 
accordance with the relevant WCPFC decision, as explained below.
    With respect to element (1) of the rule, transshipment reporting 
requirements, one alternative would be to impose a uniform timeframe 
for submission of the report; to satisfy all 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 
alternative would be more burdensome for certain types of fishing 
vessels than the alternative adopted in this final rule, and was 
rejected for that reason. Submission of transshipment reports, as well 
as specific timeframes for submission of the reports for high seas and 
emergency transshipments, are specified in CMM 2009-06. Thus, NMFS has 
not identified any alternatives that would be less burdensome than the 
alternative adopted in this final rule and 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

[[Page 71508]]

NMFS at least one business day plus 36 hours in advance of the 
transshipment (i.e., 60 hours before the transshipment), or, as under 
this final 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 final 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 was rejected. CMM 2009-06 specifies submission 
of the notices, as well as specific timeframes for submission of the 
notices. Thus, the alternatives considered by NMFS were restricted by 
the parameters of the CMM.
    With respect to element (3), observer coverage for transshipments 
at sea, NMFS has not identified any alternatives that would be less 
burdensome than the alternative adopted in this final rule and would 
accomplish the objectives of the WCPFC Implementation Act. CMM 2009-06 
specifies requirements for at-sea observer coverage. For most 
transshipments, the provisions of the CMM specify that the observer 
must be on board the receiving vessel. However, for transshipments to 
receiving vessels less than or equal to 33 meters in registered length 
and not involving purse seine caught fish or frozen longline caught 
fish, the observer may be on board the offloading or receiving vessel. 
The final rule allows maximum flexibility for at-sea observer coverage 
by allowing observers to be on board either the offloading or receiving 
vessel for transshipments to receiving vessels less than or equal to 33 
meters in registered length and not involving purse seine caught fish 
or frozen longline caught fish. There are other conceivable 
alternatives, such as requiring that an observer be on board the 
receiving vessel or requiring that an observer be on board the 
offloading vessel. However, these two approaches would be more 
constraining, and thus, more burdensome on affected entities than the 
provisions in the final rule and would not provide any advantages with 
respect to the underlying purpose of the observer requirement. In 
developing this element to afford affected entities with the maximum 
flexibility, NMFS is ensuring that there is a greater chance of 
compliance, and thus, a greater chance that the objective of the CMM 
and the final rule will be satisfied.
    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 alternative 
adopted in this final rule and would accomplish the objectives of the 
WCPFC Implementation Act. CMM 2009-06 and CMM 2009-01 include specific 
provisions for vessels with which transshipping and bunkering may be 
conducted and the final rule implements those provisions; the CMMs 
leave no room for consideration of any alternatives. 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 
alternative adopted in this final rule and would accomplish the 
objectives of the WCPFC Implementation Act. CMM 2010-02 includes 
specific requirements for notice of entry or exit for the Eastern SMA 
and the final rule implements those provisions; the CMM leaves no room 
for consideration of any alternatives that would reduce the cost of 
compliance.
    With respect to element (6), the purse seine discard report, NMFS 
has not identified any alternatives that would be less burdensome than 
the alternative adopted in this final rule and would accomplish the 
objectives of the WCPFC Implementation Act. CMM 2009-02 includes 
specific requirements for the purse seine discard report, and the final 
rule implements those provisions; the CMM leaves no room for 
consideration of any alternatives that would reduce the cost of 
compliance.
    With respect to element (7), net sharing restrictions and 
reporting, one alternative would be to allow U.S. vessels to net share 
to (but not from) 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 further considered. 
Both alternatives identified above would be less restrictive than the 
alternative adopted in this final rule and thus bring lower compliance 
costs. The first alternative would make it difficult to ensure 
consistent counting and reporting 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. Since the foreign vessel 
is not expected to report its catch and effort data to NMFS, this could 
result in inaccurate reporting of catch. The alternative was rejected 
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 was rejected for those 
reasons.
    For each element, NMFS also considered the no-action alternative, 
or status quo situation. However, as stated above, the no-action 
alternative would not accomplish the objectives of the WCPFC 
Implementation Act and was rejected for that reason.

Small Entity Compliance Guides

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, one or more small entity compliance guides 
have been prepared. The guide(s) will be sent to permit and license 
holders in the affected fisheries. The guide(s) and this final rule 
will also be available at http://www.fpir.noaa.gov/ and by request from 
NMFS PIRO (see ADDRESSES).

Paperwork Reduction Act

    This final rule contains new collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by OMB under control number 0648-0649. 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

[[Page 71509]]

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.
    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 final rule also contains a collection-of-information 
requirement subject to the PRA that was previously 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 requirement 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. NMFS estimated that the net sharing 
reporting requirement would not increase the public reporting burden 
for the Catch Report Form. 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.
    Prior notice and opportunity for public comment are not required 
with respect to the revision to the table of OMB control numbers in 15 
CFR 902.1(b), because this action is a rule of agency organization, 
procedure or practice under 5 U.S.C. 553(b)(A).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 300

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

    Dated: November 27, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 15 CFR Chapter IX and 50 
CFR Chapter III are amended as follows:

15 CFR CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 
DEPARTMENT OF COMMERCE

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

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


0
2. In Sec.  902.1, paragraph (b), the table is amended by adding in the 
left column under 50 CFR, in numerical order, entries for Sec. Sec.  
300.215, 300.218, and 300.225, and, in the right column, in 
corresponding positions, the control number ``-0649'' as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                            Current OMB
                                                          control number
  CFR Part or section where the information collection     (all numbers
                 requirement is located                     begin with
                                                              0648-)
------------------------------------------------------------------------
 
                                * * * * *
50 CFR..................................................
 
                                * * * * *
  300.215...............................................           -0649
  300.218...............................................           -0649
 
                                * * * * *
  300.225...............................................           -0649
 
                                * * * * *
------------------------------------------------------------------------

50 CFR CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
1. The authority citation for 50 CFR part 300, subpart O, continues to 
read as follows:

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


0
2. In Sec.  300.211, definitions of ``Cooperating Non-Member,'' 
``Eastern High Seas Special Management Area,'' ``Net sharing,'' ``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/.
* * * * *

0
3. Section 300.215 is revised to read as follows:

[[Page 71510]]

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 paragraph (d) of this section 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 paragraph (d) of 
this section. 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, as applicable, 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;
    (ii) 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
    (iii) 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.

0
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

[[Page 71511]]

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.
    (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 one or more of the following is satisfied:
    (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 one or more of the following is 
satisfied:
    (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.

0
5. In Sec.  300.218, paragraphs (b), (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 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

[[Page 71512]]

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 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.

0
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.

[[Page 71513]]

    (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.

0
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:
* * * * *

0
8. Section 300.225 is added to subpart O 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 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. 2012-29028 Filed 11-29-12; 4:15 pm]
BILLING CODE 3510-22-P