2011-30730. Fisheries in the Eastern Pacific Ocean; Pelagic Fisheries; Vessel Identification Requirements

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS hereby revises vessel identification requirements for fishing vessels with west coast highly migratory species (HMS) permits that are required under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species and for U.S. vessels fishing under the U.S.-Canada Albacore Treaty. The new measures allow these vessels to be marked in accordance with international standards that were implemented in early 2010 by NMFS for vessels fishing on the high seas 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 Area). Currently, the marking requirements for fishing vessels with west coast HMS permits or under the U.S.-Canada Albacore Treaty do not comport with these international standards. These new measures require vessels that fish in the Convention Area to display at all times their International Radio Call Sign (IRCS), or if an IRCS has not been assigned to the vessel, the vessel is required to display its official number, preceded by the characters “USA-.” The intent of this action is to bring the existing vessel identification requirements for U.S. vessels with west coast HMS permits or under the U.S.-Canada Albacore Treaty into conformity with the binding vessel identification requirements adopted by the Western and Central Pacific Fisheries Commission (WCPFC).

DATES:

These regulations become effective on January 1, 2012.

ADDRESSES:

Copies of the proposed and final rules and the Regulatory Impact Review for this action are available via the Federal e-Rulemaking portal, at http://www.regulations.gov,, and are also available from the Regional Administrator, Rodney R. McInnis, NMFS Southwest Regional Office, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802. 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 the NMFS Southwest Regional Office and by email to [e-mail], or fax to [phone].

FOR FURTHER INFORMATION CONTACT:

Heidi Hermsmeyer, NMFS SWR, [phone].

SUPPLEMENTARY INFORMATION:

The WCPFC was established under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention). The Convention's objective is to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean, including measures to manage and conserve tunas and to minimize impacts on non-target, associated, and dependent species, such as sea turtles and seabirds. Figure 1 is a map of the Convention Area. Several U.S. troll, pole-and-line, tuna purse seine, and pelagic longline fisheries operate in the Convention Area.

Under the Convention and decisions of the WCPFC, specifically Conservation and Management Measure 2004-03, “Specifications for the Marking and Identification of Fishing Vessels,” vessels that are authorized to fish on the high seas in the Convention Area are required to be identified in accordance with the Standard Specifications for the Marking and Identification of Fishing Vessels of the Food and Agriculture Organization of the United Nations. By the final rules published on January 21, 2010 (75 FR 3335 and 3416), NMFS implemented those standards for U.S. fishing vessels under the authority of the Western and Central Pacific Fisheries Convention Implementation Act (16 U.S.C. 6901 et seq.) and the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.), but those regulations did not extend to fishing vessels with west coast HMS permits or operating under the U.S.-Canada Albacore Treaty. Specifically, U.S. vessels fishing for HMS on the high seas for commercial purposes that are required to obtain a NMFS-issued WCPFC Area Endorsement are required to display their IRCS on the port and starboard sides of the hull or superstructure and deck surface. If an IRCS has not been assigned, the vessels are required to display their official number (i.e., USCG documentation number or other registration number) preceded by the characters “USA” and a hyphen (i.e., “USA-”). Only these markings are allowed on the hull or superstructure, apart from the vessel's name and hailing port.

This final rule is consistent with the requirements adopted by the WCPFC as it revises existing vessel identification regulations at Title 50, Code of Federal Regulations, §§ 660.704 and 300.173 to conform to the international standards. U.S. vessels that are issued a permit under 50 CFR 660.707, i.e., vessels that fish for HMS off the coasts of or land HMS in the States of California, Oregon, and Washington, and that fish for HMS on the high seas of the Convention Area are, under this final rule, required to display vessel markings as described above. Vessels that fish for HMS only within the U.S. Exclusive Economic Zone (EEZ) off the U.S. West Coast or on the high seas outside of the Convention Area (e.g., in the eastern Pacific Ocean) have the option to be marked pursuant to the vessel identification requirements described above, or maintain existing markings. This final rule modifies only the requirements for the size and characters with which Federally-permitted HMS fishing vessels are marked, and does not modify the requirements for vessel operations or for other aspects of HMS fisheries. The Pacific Fishery Management Council (Council) was briefed on this issue at its September 2008 meeting; in a letter dated November 20, 2008, the Council formally recommended that NMFS revise regulations accordingly.

It is estimated that at a maximum 125 vessel owners would change their vessel markings (estimate based on the current number of active U.S. west coast-based vessels targeting HMS on the high seas that have the potential to fish in the Convention Area) as a result of the rule. However, it is highly likely that a much smaller number of vessel owners will actually be required to change their markings. In recent years fewer than 10 U.S. west coast-based vessels have fished in the Convention Area. In addition, there are vessels based out of Hawaii that have west coast HMS permits that fish in the Convention Area and therefore will be required to change their markings, including at least 15 longline vessels and 8 troll and bait boat vessels. Some vessels may also opt to change their markings to conform to international standards and be prepared to fish in the Convention Area should fishing conditions and practices change in the future.

Response to Comments

NMFS received two public comments during the comment period. One comment from the Hawaii Longline Association (HLA) expressed support for the action. The other comment sent by the Western Fishboat Owners Association (WFOA) conveyed some concern and confusion regarding the applicability of the requirements to the albacore troll and baitboat fleet.

Comment 1: The HLA expressed support for this action given that HLA vessels often move across the boundary between the eastern Pacific Ocean (EPO) and the Convention Area and having a single set of marking requirements will facilitate such movements.

Response: NMFS acknowledges this comment in support of the action.

Comment 2: A comment received from WFOA noted some concern and confusion with the following statement in the preamble of the proposed rule regarding the vessel identification requirements for U.S. vessels used for commercial fishing for HMS on the high seas with a NMFS-issued WCPFC Area Endorsement, “Only these markings would be allowed on the hull or superstructure, apart from the vessel's name and hailing port.” The commenter also noted that this statement was made in the preamble of the proposed rule but was not included in the proposed regulatory text. The letter noted that the “current rule unfortunately can be read that the only marking acceptable under it is that called for by the WCPFC so that now a vessel fishing in the South Pacific has to have one identification mark, and when it returns to the Eastern Pacific Fishery and fishes under the treaty with Canada the vessel identification number has to be changed to what is called for under those regulations.” The commenter also expressed the belief that a vessel marked in accordance with the regulations for the U.S. Albacore Treaty with Canada should adequately fulfill the requirements under the WCPFC per section 2.1.1(b) of the WCPFC Conservation and Management Measure on Specifications for the Marking and Identification of Fishing Vessels (CMM 2004-03).

Response: The statement in the preamble to the proposed rule regarding the requirement to have only one set of vessel identification markings on a fishing vessel is a reference to regulations governing U.S. vessels with a WCPFC Area Endorsement under 50 CFR 300.217(b)(2), which reads, “With the exception of the vessel's name and hailing port, the marking required in this section shall be the only vessel identification mark consisting of letters and numbers to be displayed on the hull and superstructure.” This is one of the requirements for vessel identification under section 2.1.3(a) of WCPFC CMM 2004-03. Thus, if a U.S. vessel anticipates fishing in the Convention Area and obtains a WCPFC Area Endorsement, the vessel is required to be marked in accordance with 50 CFR 300.14 and 300.217. However, if a U.S. vessel operating with a west coast HMS permit or under the U.S.-Canada Albacore Treaty does not require a WCPFC Area Endorsement, it may maintain its current vessel markings according to 50 CFR 660.704 or 50 CFR 300.173. If vessels choose to mark their vessels according to the WCPFC requirements and are fishing in the western and central Pacific Ocean, they will not be required to change those markings upon entering the EPO. As proposed, this rulemaking amends 50 CFR 300.173 so that vessels may operate under the U.S.-Canada Albacore Treaty and be marked according to the WCPFC requirements.

Finally, regarding Section 2.1.1(b) of WCPFC CMM 2004-03, that section of the WCPFC vessel identification requirements is only applicable to vessels that do not have an IRCS and the U.S.-Canada Albacore Treaty vessel identification requirements do not satisfy the requirements under this exception. If a vessel requires a WCPFC Area Endorsement and does not have an IRCS, it must be marked with the Federal, State, or other documentation number preceded by the characters “USA” and a hyphen (that is, “USA-”). The U.S. Canada Albacore Treaty regulations require vessels to be marked with the Federal or State documentation number followed by the letter “U” and the size requirements differ. If a vessel has an IRCS and requires a WCPFC Area Endorsement, it must be marked with its IRCS. As mentioned before, vessels that are marked according to the WCPFC Area Endorsement requirements may retain those vessel identification markings and operate in the EPO with a west coast HMS permit or under the U.S.-Canada Albacore Treaty without making changes to those vessel identification markings.

Changes From the Proposed Rule

The only change from the proposed rule is the removal of paragraph (c) of 50 CFR 300.217. This paragraph provided an exception to the vessel identification requirements under § 300.217 for fishing vessels that are subject to the vessel identification requirements of §§ 300.173 or 660.704 of this title until conflicts between the requirements of this section and the requirements of those sections are reconciled. Since this rulemaking reconciles those conflicts, this exception is no longer necessary, thus it is being removed.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Magnuson-Stevens Act and other applicable law.

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

The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB) under control numbers 0648-0361 and 0648-0492. Public reporting burden for vessel identification requirements under 0648-0361 is estimated to average 45 minutes per response, and public reporting burden for vessel marking requirement under 0648-0492 is estimated to average 5 minutes 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 these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to [e-mail], or fax to [phone].

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

50 CFR Part 300

• Administrative practice and procedure
• Fisheries
• Reporting and recordkeeping requirements

50 CFR Part 660

• Administrative practice and procedure
• Reporting and recordkeeping requirements

Dated: November 22, 2011.

Samuel D. Rauch III,

Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 300 and 660 are amended as follows:

PART 300—INTERNATIONAL FISHERIES REGULATIONS

1. The authority citation for part 300 continues to read as follows:

Authority: 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.

2. Section § 300.173 is revised to read as follows:

§ 300.173

Vessel identification.

Each U.S. vessel fishing under the Treaty must be marked for identification purposes, as follows:

(a) A vessel used to fish on the high seas within the Convention Area as defined in § 300.211 must be marked in accordance with the requirements at §§ 300.14 and 300.217.

(b) A vessel not used to fish on the high seas within the Convention Area as defined in § 300.211 must be marked in accordance with either:

(1) Sections 300.14 and 300.217, or

(2) The vessel's name and U.S. Coast Guard Documentation number (or if not documented, the state registration number) followed by the letter U must be prominently displayed where they are clearly visible both from the air and from a surface vessel. Numerals and the letter U must meet the size requirements of § 660.704 of this title. Markings must be legible and of a color that contrasts with the background.

§ 300.217

[Amended]

3. In § 300.217, remove paragraph (c).

PART 660—FISHERIES OFF WEST COAST STATES

4. The authority citation for part 660 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 7001 et seq.

5. Section 660.704 is revised to read as follows:

§ 660.704

Vessel identification.

(a) Applicability. This section only applies to commercial fishing vessels that fish for HMS off, or land HMS in the States of California, Oregon, and Washington. This section does not apply to recreational charter vessels that fish for HMS off or land HMS in the States of California, Oregon, and Washington. Each fishing vessel must be marked for identification purposes, as follows:

(1) A vessel used to fish on the high seas within the Convention Area as defined in § 300.211 of this title must be marked in accordance with the requirements at §§ 300.14 and 300.217 of this title.

(2) A vessel not used to fish on the high seas within the Convention Area as defined in § 300.211 of this title must be marked in accordance with either:

(i) Sections 300.14 and 300.217 of this title, or

(ii) The vessel's official number must be affixed to the port and starboard sides of the deckhouse or hull, and on an appropriate weather deck so as to be visible from enforcement vessels and aircraft. The official number must be affixed to each vessel subject to this section in block Arabic numerals at least 10 inches (25.40 cm) in height for vessels more than 25 ft (7.62 m) but equal to or less than 65 ft (19.81 m) in length; and 18 inches (45.72 cm) in height for vessels longer than 65 ft (19.81 m) in length. Markings must be legible and of a color that contrasts with the background.

(b) [Reserved]