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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations
American Samoa. NMFS commits significant resources facilitating the deployment of these observers in Pago Pago. The requirements in this final rule formalize an informal process that is already in place.
As stated above, this rule does not guarantee that a WCPFC observer will be placed on board a purse seine vessel within five business days of a notification being submitted. Similarly, as the commenter noted there may be circumstances in which a WCPFC
observer is already in American Samoa and fewer than five days may be needed for an observer to be placed on a purse seine vessel in those circumstances.
NMFS acknowledges that there may be times where observer placement could occur more quickly. In this final rule NMFS has changed the regulatory text so that the date that must be provided in the notification is the intended date and not necessarily the date the vessel leaves port.
NMFS does not believe that the pretrip notification requirement would restrict operational flexibility for purse seine vessels.
Changes From the Proposed Rule This final rule includes four changes to the regulatory text from the proposed rule. NMFS has removed the regulatory text requiring pre-trip notification requests for cross-endorsed observers, as well as the definition of WCPFCIATTC
cross-endorsed observer associated with that requirement. NMFS has also changed the timing of the pre-trip notification requirement at 50 CFR
300.215d2 for purse seine vessels departing from American Samoa such that the notification must be submitted at least five business days before the vessel owners or operators intended departure date rather than the actual departure date. NMFS has made editorial changes to correctly spell the WCPFC Regional Observer Programme in 50 CFR 300.215f. NMFS also added paragraph aaa in 50 CFR 300.222
prohibiting the failure to provide pretrip notification.

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Classification The Administrator, Pacific Islands Region, NMFS, has determined that this final rule is consistent with the WCPFC
Implementation Act and other applicable laws.
Coastal Zone Management Act CZMA
NMFS determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of American Samoa, the Commonwealth of the Northern Mariana
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Islands CNMI, Guam, and the State of Hawaii. NMFS submitted determinations to Hawaii and each of the Territories on March 16, 2020, for review by the responsible state and territorial agencies under section 307 of the CZMA. Hawaii replied by letter dated March 19, 2020, stating that, because the proposed rule is outside of the jurisdiction of the Hawaii Coastal Zone Management Programs enforceable policies, it would not be responding to the consistency determination. The CNMI replied by letter dated May 12, 2020, stating that based on the information provided, it has determined that the action will be undertaken in a manner that is consistent to the maximum extent practicable with the enforceable policies of the CNMIs coastal management program. Guam replied by letter dated May 27, 2020, stating that based on the information provided, it has determined that the action will be consistent with the enforceable policies of Guams Coastal Management Program. No response was received from American Samoa, and thus, concurrence with the respective consistency determinations is presumed 15 CFR 930.41.
Executive Order 12866
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Regulatory Flexibility Act RFA
A final regulatory flexibility analysis FRFA was prepared, as required by section 604 of the RFA. The FRFA
incorporates the initial regulatory flexibility analysis 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 SUMMARY
section and this SUPPLEMENTARY
INFORMATION section of the preamble of this final rule. The FRFA analysis follows: Significant Issues Raised by Public Comments in Response to the IRFA
See comment three and response by NMFS above for matters raised regarding the IRFA, which pertains to potential disproportionate burden for purse seine vessels.
Description of Small Entities to Which the Rule Will Apply For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing 50 CFR 200.2. A
business primarily engaged in commercial fishing NAICS code
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114111 is classified as a small business if it is independently owned and operated, is not dominant in its field of operation including its affiliates, and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
This final rule would apply to owners and operators of U.S. commercial fishing vessels that fish for highly migratory species HMS in the Convention Area that: 1 Carry a WCPFC Observer or 2 purse seine for HMS in the Convention Area. This includes vessels in the purse seine, longline, and albacore troll fleets. The estimated number of affected fishing vessels is as follows based on the number of vessels on the WCPFC
Record of Fishing Vessels as of March 2, 2021: 20 Purse seine vessels, 154
longline vessels, and 27 albacore troll vessels. Thus, the total estimated number of commercial fishing vessels that would be subject to the rule is 201.
The purse seine vessels operating in the Convention Area generally land in American Samoa and other ports in Pacific Islands, the longline vessels operating in the Convention Area generally land in American Samoa and Hawaii, and the albacore troll vessels operating in the Convention Area generally land their catch in California, Oregon, Washington, or Canada.
Based on limited 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 all the fleets, except the purse seine fleet, 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 $11.0 million.
Within the purse seine fleet, analysis of average revenue, by vessel, for 2017
2019 reveals that average fleet revenue was $8,212,000 NMFS unpublished data combined with price data from https www.ffa.int/node/425 and https www.wcpfc.int/node/46580
accessed on July 27, 2020; however, 14
participating vessels qualified as small entities with their average of the most recent three years of vessel revenue for which data is available of less than $11
million. Within the Hawaii based longline fleet, an average of 146 vessels recorded landings during 20172019
with a average vessel revenue of approximately $828,000 per vessel estimate calculated using data from the 2019 Pelagic Fishery Ecosystem Plan Stock Assessment and Fishery Evaluation Report and Annual Reports of the Hawaii Longline Fishery. For the
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