[Federal Register Volume 79, Number 163 (Friday, August 22, 2014)]
[Proposed Rules]
[Pages 49745-49753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-19962]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 130703588-4658-01]
RIN 0648-BD44
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Fishing Restrictions regarding the
Oceanic Whitetip Shark, the Whale Shark, and the Silky Shark
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations under authority of the Western and
Central Pacific Fisheries Convention Implementation Act (WCPFC
Implementation Act) 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) on fishing
restrictions related to the oceanic whitetip shark (Carcharhinus
longimanus), the whale shark (Rhincodon typus), and the silky shark
(Carcharhinus falciformis). The regulations would apply to owners and
operators of U.S. fishing vessels used for commercial fishing for
highly migratory species (HMS) 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). The
regulations for oceanic whitetip sharks and silky sharks would prohibit
the retention, transshipment, storage, or landing of oceanic whitetip
sharks or silky sharks and would require the release of any oceanic
whitetip shark or silky shark as soon as possible after it is caught,
with as little harm to the shark as possible. The regulations for whale
sharks would prohibit setting a purse seine on a whale shark and would
specify certain measures to be taken and reporting requirements in the
event a whale shark is encircled in a purse seine net. This action is
necessary for the United States to satisfy its obligations under the
Convention, to which it is a Contracting Party.
DATES: Comments must be submitted in writing by October 6, 2014.
ADDRESSES: You may submit comments on this proposed rule, identified by
NOAA-NMFS-2014-0086, and the regulatory impact review (RIR) prepared
for this proposed rule, by either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0086, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Michael D. Tosatto,
Regional Administrator, Pacific Islands Regional Office, NOAA Inouye
Regional Center, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
might not be considered by NMFS. All comments received are a part of
the public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name and address), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
An initial regulatory flexibility analysis (IRFA) prepared under
authority of the Regulatory Flexibility Act is included in the
Classification section of the SUPPLEMENTARY INFORMATION section of this
proposed rule.
Copies of the RIR and the Environmental Assessment (EA) are
available at www.regulations.gov or may be obtained from Michael D.
Tosatto, NMFS PIRO (see address above).
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to Michael D. Tosatto, Regional
Administrator, NMFS PIRO (see address above) and by email to [email protected] or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Rini Ghosh, NMFS PIRO, 808-725-5033.
SUPPLEMENTARY INFORMATION:
Background on the Convention
A map showing the boundaries of the area of application of the
Convention (Convention Area), which comprises the majority of the
western and central
[[Page 49746]]
Pacific Ocean (WCPO), can be found on the WCPFC Web site at:
www.wcpfc.int/doc/convention-area-map. The Convention focuses on the
conservation and management of highly migratory species (HMS) and the
management of fisheries for HMS. The objective of the Convention is to
ensure, through effective management, the long-term conservation and
sustainable use of HMS in the WCPO. To accomplish this objective, the
Convention establishes the Commission for the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central
Pacific Ocean (WCPFC). The WCPFC includes Members, Cooperating Non-
members, and Participating Territories (collectively, CCMs). The United
States is a Member. American Samoa, Guam, and the Commonwealth of the
Northern Mariana Islands (CNMI) are Participating Territories.
As a Contracting Party to the Convention and a Member of the WCPFC,
the United States is obligated to implement the decisions of the WCPFC.
The WCPFC Implementation Act (16 U.S.C. 6901 et seq.), authorizes the
Secretary of Commerce, in consultation with the Secretary of State and
the Secretary of the Department in which the United States Coast Guard
is operating (currently the Department of Homeland Security), to
promulgate such regulations as may be necessary to carry out the
obligations of the United States under the Convention, including the
decisions of the WCPFC. The WCPFC Implementation Act further provides
that the Secretary of Commerce shall ensure consistency, to the extent
practicable, of fishery management programs administered under the
WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation
and Management Act (MSA; 16 U.S.C. 1801 et seq.), as well as other
specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has
delegated the authority to promulgate regulations under the WCPFC
Implementation Act to NMFS.
WCPFC Decision on the Oceanic Whitetip Shark
The WCPFC adopted ``Conservation and Management Measure for Oceanic
Whitetip Shark'' (CMM 2011-04) to address recent declines in catch
rates and size of oceanic whitetip sharks in the longline and purse
seine fisheries. CMM 2011-04 includes two provisions for CCMs to apply
to their vessels. The first provision requires CCMs to prohibit their
vessels from retaining on board, transshipping, storing on board, or
landing any oceanic whitetip shark, in whole or in part, in the
fisheries covered by the Convention. The second provision requires CCMs
to require their vessels to release any oceanic whitetip shark that is
caught as soon as possible after the shark is brought alongside the
vessel, and to do so in a manner that results in as little harm to the
shark as possible. CMM 2011-04 also includes a provision that acts as a
limited exemption from the other provisions by allowing observers to
collect samples from oceanic whitetip sharks that are dead on haulback,
provided that the collection is part of a research project approved by
the WCPFC Scientific Committee. The proposed rule would implement all
of these provisions for U.S. fishing vessels, as detailed in the
section below titled ``Proposed Action.''
WCPFC Decision on the Whale Shark
The WCPFC adopted ``Conservation and Management Measure for
Protection of Whale Sharks from Purse Seine Fishing Operations'' (CMM
2012-04) in response to concerns about the potential impacts of purse
seine fishing operations on the sustainability of the whale shark.
Paragraph 1 of CMM 2012-04 specifies that the measure applies only to
the high seas and exclusive economic zones (EEZs) in the area of
application of the Convention (Convention Area) (i.e., not to
territorial seas or archipelagic waters). CMM 2012-04 includes four
specific provisions for CCMs to implement for their vessels. The first
provision requires CCMs to prohibit their flagged vessels from setting
a purse seine on a school of tuna associated with a whale shark if the
animal is sighted prior to the commencement of the set. The measure
specifies that in the EEZs of Parties to the Nauru Agreement (PNA), the
prohibition shall be implemented in accordance with the ``Third
Arrangement Implementing the Nauru Agreement Setting Forth Additional
Terms and Conditions of Access to the Fisheries Zones of the Parties,''
as amended on September 11, 2010 (Third Arrangement). The Third
Arrangement states that no purse seine vessel shall engage in fishing
or related activity in order to catch tuna associated with whale sharks
and that the provisions of the Third Arrangement shall be implemented
in accordance with a program adopted by the Parties. The United States
is not a party to the Nauru Agreement and has no role in implementing
it or the Third Arrangement. It is expected that the PNA will implement
this provision of the CMM in their EEZs in accordance with the Third
Arrangement. Accordingly, this proposed rule would not implement the
prohibition in the EEZs of the PNA, but would implement the prohibition
in all other EEZs and on the high seas in the Convention Area, as
detailed in the section below titled ``Proposed Action.''
The second and third provisions of CMM 2012-04 require CCMs to
require that operators of their vessels take certain measures in the
event that a whale shark is encircled in a purse seine net: the
operator shall ensure that reasonable steps are taken to ensure the
safe release of the shark; and report the incident to the relevant
authority of the flag State, including the number of individuals,
details of how and why the encirclement happened, where it occurred,
steps taken to ensure safe release, and an assessment of the life
status of the whale shark on release (including whether the animal was
released alive, but subsequently died). These two provisions are
applicable to the high seas and all EEZs in the Convention Area,
including the EEZs of the PNA. The proposed rule incorporates these two
provisions, as detailed in the section below titled ``Proposed
Action.''
The final provision of CMM 2012-04 for CCMs to apply to their
vessels is for CCMs to require their vessels to follow any guidelines
adopted by the WCPFC for the safe release of whale sharks. The proposed
rule would not implement this provision because the WCPFC has not yet
adopted guidelines for the safe release of whale sharks.
CMM 2012-04 also specifies the importance of maintaining the safety
of the crew during the implementation of the provisions in the CMM, and
this concept has been included in the proposed rule.
WCPFC Decision on the Silky Shark
The WCPFC adopted ``Conservation and Management Measure for Silky
Sharks'' (CMM 2013-08) in response to the results of the recent WCPFC
stock assessment, showing that the species is overfished and that
overfishing is occurring. The provisions of CMM 2013-08 are similar to
the provisions of CMM 2011-04. One provision requires CCMs to prohibit
their vessels from retaining on board, transshipping, storing on board,
or landing any silky shark, in whole or in part, in the fisheries
covered by the Convention. Another provision requires CCMs to require
their vessels to release any silky shark that is caught as soon as
possible after the shark is brought alongside the vessel, and to do so
in a manner that results in as little harm to the shark as possible.
CMM 2013-08 also includes a provision that acts as a limited exemption
from the other provisions by
[[Page 49747]]
allowing observers to collect samples from silky sharks that are dead
on haulback, provided that the collection is part of a research project
approved by the WCPFC Scientific Committee. The proposed rule would
implement all of these provisions for U.S. fishing vessels, as detailed
in the section below titled ``Proposed Action.''
Proposed Action
This proposed rule would implement the provisions of CMM 2011-04,
CMM 2012-04, and CMM 2013-08, described above, for U.S. fishing vessels
used for commercial fishing for HMS in the Convention Area. The
proposed rule includes six elements--three elements regarding the
oceanic whitetip shark and silky shark and three elements regarding the
whale shark. For the oceanic whitetip shark and silky shark, the first
element would prohibit the crew, operator, and owner of a fishing
vessel of the United States used for commercial fishing for HMS from
retaining on board, transshipping, storing, or landing any part or
whole carcass of an oceanic whitetip shark or silky shark that is
caught in the Convention Area. The second element would require the
crew, operator, and owner to release any oceanic whitetip shark or
silky shark caught in the Convention Area as soon as possible after the
shark is caught and brought alongside the vessel and take reasonable
steps for its safe release, without compromising the safety of any
persons. The third element takes into consideration that,
notwithstanding the other two oceanic whitetip and silky shark elements
of the rule, WCPFC observers may collect samples of oceanic whitetip
sharks or silky sharks that are dead when brought alongside the vessel
and may require the crew, operator, or owner of the vessel to allow or
assist them to collect samples in the Convention Area. Observers
deployed by NMFS or the Forum Fisheries Agency are currently considered
WCPFC observers, as those programs have completed the required
authorization process to become part of the WCPFC Regional Observer
Programme.
The WCPFC Implementation Act states that regulations promulgated
under the act shall apply within the boundaries of any of the States of
the United States and any commonwealth, territory or possession of the
United States (hereafter ``State'') bordering on the Convention Area if
the Secretary of Commerce has provided notice to the State, the State
does not request an agency hearing, and the Secretary of Commerce has
determined that the State has not, within a reasonable period of time
after the promulgation of regulations, enacted laws or promulgated
regulations that implement the recommendations of the WCPFC within the
boundaries of the State; or has enacted laws or promulgated regulations
that implement the recommendations of the WCPFC that are less
restrictive than the regulations promulgated under the WCPFC
Implementation Act or are not effectively enforced (16 U.S.C. 6907(e)).
NMFS will furnish copies of the proposed rule to American Samoa, Guam,
Hawaii, and the Commonwealth of the Northern Mariana Islands at the
time of publication in the Federal Register and will be available to
discuss ways to ensure that the conservation and management measures
implemented in this rulemaking can be consistently applied to federal,
state, and territorial managed fisheries.
For the whale shark, the first element of the proposed rule would
prohibit owners, operators, and crew of fishing vessels from setting or
attempting to set a purse seine in the Convention Area on or around a
whale shark if the animal is sighted prior to the commencement of the
set or the attempted set. CMM 2012-04 includes language making the
prohibition specific to ``a school of tuna associated with a whale
shark.'' However, it is unclear exactly what this phrase means. Thus,
NMFS believes it is appropriate to apply this prohibition to any purse
seine set or attempted set on or around a whale shark that has been
sighted prior to commencement of the set or attempted set. This
prohibition would not apply to sets made in the territorial seas or
archipelagic waters of any nation or in the EEZs of the PNA. The
proposed rule would also include a definition of the PNA as the Pacific
Island countries that are parties to the Nauru Agreement Concerning
Cooperation in the Management of Fisheries of Common Interest, as
specified on the Web site of the Parties to the Nauru Agreement at
www.pnatuna.com. The PNA currently includes the following countries:
Federated States of Micronesia, Kiribati, Marshall Islands, Nauru,
Palau, Papua New Guinea, Solomon Islands, and Tuvalu. Vessel owners and
operators may be subject to similar prohibitions regarding the whale
shark in the EEZs of the PNA, if implemented by the PNA in accordance
with the Third Arrangement.
The second element for the whale shark in the proposed rule would
require the crew, operator, and owner of a fishing vessel to release
any whale shark that is encircled in a purse seine net in the
Convention Area, and must take reasonable steps are taken to ensure its
safe release, without compromising the safety of any persons. This
element also would not apply in the territorial seas or archipelagic
waters of any nation, but would apply in the EEZs of the PNA.
The third and final element for the whale shark in the proposed
rule would require the owner and operator of a fishing vessel that
encircles a whale shark with a purse seine in the Convention Area to
ensure that the incident is recorded by the end of the day on the catch
report form, or Regional Purse Seine Logsheet (RPL), maintained
pursuant to Sec. 300.34(c)(1), in the format specified by the Pacific
Islands Regional Administrator. The Pacific Islands Regional
Administrator would provide vessel owners and operators with specific
instructions for how to record whale shark encirclements on the RPL.
Classification
The Administrator, Pacific Islands Region, NMFS, has determined
that this proposed rule is consistent with the WCPFC Implementation Act
and other applicable laws, subject to further consideration after
public comment.
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
An in initial regulatory flexibility analysis (IRFA) was prepared,
as required by section 603 of the Regulatory Flexibility Act. The IRFA
describes the economic impact this proposed rule would have on small
entities, if adopted. A description of the action, why it is being
considered, and the legal basis for this action are contained in the
SUMMARY section of the preamble and in other sections of this
SUPPLEMENTARY INFORMATION section of the preamble. The analysis
follows:
Estimated Number of Small Entities Affected
The proposed rule would apply to owners and operators of U.S.
fishing vessels used to fish for HMS for commercial purposes in the
Convention Area. This includes vessels in the purse seine, longline,
tropical troll (including those in American Samoa, the Commonwealth of
the Northern Mariana Islands, Guam, and Hawaii), Hawaii handline,
Hawaii pole-and-line, and west coast-based albacore troll fleets. The
estimated number of affected fishing vessels is as follows, broken
[[Page 49748]]
down by fleet: 40 purse seine vessels (based on the number of purse
seine vessels licensed under the South Pacific Tuna Treaty as of March
2014); 165 longline vessels (based on the number of longline vessels
permitted to fish as of July 2014 under the Fishery Ecosystem Plan for
Pacific Pelagic Fisheries of the Western Pacific Region, which includes
vessels based in Hawaii (a total of 164 Hawaii Longline Limited Entry
permits are available), American Samoa (a total of 60 American Samoa
Longline Limited Entry permits are available), and the Mariana
Islands); 2,089 tropical troll and 572 Hawaii handline vessels (based
on the number of active troll and handline vessels in American Samoa,
Guam, the Commonwealth of the Northern Mariana Islands, and Hawaii in
2012, the latest year for which complete data are available); 1
tropical pole-and-line vessel (based on the number of active vessels in
2012), and 13 albacore troll vessels (based on the number of albacore
troll vessels authorized to fish on the high seas in the Convention
Area as of July 2014). Thus, the total estimated number of vessels that
would be subject to the rule is approximately 2,878.
On June 12, 2014, the Small Business Administration (SBA) issued an
interim final rule revising the small business size standards for
businesses including those in the fishing industry, effective July 14,
2014 (79 FR 33647). The rule increased the size standard for Finfish
Fishing to $20.5 million. Based on (limited) available financial
information about the affected fishing fleets and the SBA's definition
of a small finfish harvester (i.e., gross annual receipts of less than
$20.5 million, independently owned and operated, and not dominant in
its field of operation), and using individual vessels as proxies for
individual businesses, NMFS believes that all of the affected fish
harvesting businesses are small entities. As indicated above, there are
currently 40 purse seine vessels in the affected purse seine fishery.
Average annual receipts for each of the 40 vessels during the last
three years for which reasonably complete data are available, 2010-
2012, were estimated by multiplying the vessel's reported retained
catches of each of skipjack tuna, yellowfin tuna, and bigeye tuna in
each year by an indicative regional cannery price for that species and
year (developed by the Pacific Islands Forum Fisheries Agency and
available at https://www.ffa.int/node/425#attachments), summing the
receipts across species for each year, and averaging the total
estimated receipts across the three years. The estimated average annual
receipts for each of the 40 vessels were less than $20.5 million.
Recordkeeping, Reporting, and Other Compliance Requirements
The reporting, recordkeeping and other compliance requirements of
this proposed rule are described earlier in the preamble. The classes
of small entities subject to the requirements and the costs of
complying with the proposed requirements are described below for each
of the six elements of the proposed rule--three elements regarding the
oceanic whitetip shark and silky shark and three elements regarding the
whale shark.
Oceanic Whitetip Shark and Silky Shark Element (1): Prohibit the
crew, operator, and owner of a fishing vessel from retaining on board,
transshipping, storing, or landing any oceanic whitetip shark or silky
shark: This element would prohibit the crew, operator, and owner of a
fishing vessel of the United States used for commercial fishing for HMS
from retaining on board, transshipping, storing, or landing any part or
whole carcass of an oceanic whitetip shark or silky shark that is
caught in the Convention Area. This requirement would not impose any
new reporting or recordkeeping requirements. It is not expected to
require any professional skills that the affected vessel owners,
operators and crew do not already possess. This requirement would apply
to owners, operators and crew of any vessel used to fish for HMS for
commercial purposes in the Convention Area. Accordingly, it would apply
to all vessels identified above. Based on the best available data,
oceanic whitetip shark and silky shark are not caught in the Hawaii
handline fishery, the Hawaii pole-and-line fishery, or the albacore
troll fishery. Thus, compliance costs are expected only in the purse
seine, longline, and tropical troll fleets. This requirement would
foreclose harvesting businesses' opportunity to retain and sell or
otherwise make use of the two species. The compliance cost for each
entity can be approximated by the ex-vessel value of the amount of the
two species that would be expected to be retained if it were allowed
(under no action). Price data for specific shark species and in
specific fisheries is lacking, so this analysis assumes that the ex-
vessel value of both species in all affected fisheries is $1.50/kg,
which is the 2011 ex-vessel price (converted to 2013 dollars) for
sharks generally in Hawaii's commercial pelagic fisheries (which do not
include the purse seine fishery, in which the fate and value of
retained sharks are not known). Expected retained amounts of each of
the two species in each fishery (under no action) are based on the
recent level of fishing effort multiplied by the recent retention rate
per unit of fishing effort. For all fisheries except the purse seine
fishery, the average of the last five years for which complete data are
available, 2008-2012, is used. The analysis of impacts for the purse
seine fishery uses fishing effort and the retention rate averaged over
2010 and 2011 because the fleet was substantially smaller than the
current 40-vessel size in years previous to 2010, 100% observer
coverage started in 2010, and 2011 is the last year for which near-
complete data are available. Fishing effort estimates are based on
vessel logbook data, except in the case of the American Samoa, CNMI,
and Guam troll fisheries, for which creel survey data are used. Recent
retention rates in the purse seine and longline fisheries are estimated
from vessel observer data. In the Hawaii troll fishery, vessel logbook
data are used, and in the American Samoa, CNMI, and Guam troll
fisheries, creel survey data are used. Fish numbers are converted to
weights based on vessel observer data for each fishery, except for the
troll fisheries, for which weight data are lacking and the average
weights in the Hawaii deep-set longline fishery are used. The average
weights used are, for oceanic whitetip shark and silky shark,
respectively: purse seine: 23 kg and 32 kg; Hawaii deep-set longline:
27 kg and 28 kg; Hawaii shallow-set longline: 27 kg and 28 kg; American
Samoa longline: 26 kg and 18 kg; and tropical troll: 27 kg (the two
species cannot be accurately distinguished in the data and are combined
for the purpose of this analysis).
In the purse seine fishery, in which about 40 vessels are expected
to participate in the near future, it is estimated that 0.1 oceanic
whitetip shark and 2.9 silky shark would be retained (under no action)
per vessel per year, on average. Applying the average weights and price
given above, these amounts equate to estimated lost annual revenue of
about $140 per vessel, on average.
As indicated above, about 162 vessels are expected to participate
in the affected longline fisheries in the near future. The longline
fisheries operating in the Convention Area include the Hawaii-based
fisheries, which include a tuna-targeting deep-set fishery and
swordfish-targeting shallow set fishery, and the American Samoa-based
fishery. Occasionally there is also longline fishing by vessels based
in the Mariana Islands, where participation is typically
[[Page 49749]]
fewer than three vessels in any given year. No vessel observer data are
available specifically for the Mariana Islands longline fishery, making
it difficult to analyze shark catch rates, but shark catch rates in the
other longline fisheries might be reasonable proxies for catch rates in
the Mariana Islands fishery. In that case, to the extent either oceanic
whitetip shark or silky shark is caught and retained in the Mariana
Islands longline fishery in the future, the effects of the proposed
rule can be expected to be about the same--on a per-unit of fishing
effort basis--as those in the other longline fisheries, as described
here. In the Hawaii and American Samoa longline fisheries, it is
estimated that 0.2 oceanic whiteip shark and 0.1 silky shark would be
retained (under no action) per vessel per year, on average. These
amounts equate to estimated lost annual revenue of about $12 per
vessel, on average.
Catch and retention rates of the two shark species in the tropical
troll fisheries are difficult to estimate for several reasons. For
example, in the Hawaii troll fishery, there is no species code for
silky shark so any catches of that species are recorded as unidentified
sharks. In the troll fisheries of the three territories, because the
two carcharhinid species are retained only infrequently, it is
difficult to generate estimates of total catches of the two species
with much certainty using the creel surveys that sample only a subset
of all fishing trips. Because of these and other limitations, only very
approximate estimates can be made. For this analysis, all unidentified
sharks in the data are assumed to be oceanic whitetip shark or silky
shark, so the resulting estimates are upper-bound estimates. In the
Hawaii troll fishery it is estimated that 9 sharks would be retained
(under no action) per year, on average, for the fishery as a whole.
With approximately 1,694 vessels expected to participate in the fishery
(based on the number active in 2012), this equates to about 0.01 sharks
per vessel per year, and an estimated lost annual revenue of less than
one dollar per vessel. The Guam troll fishery, with about 351 vessels
expected to participate in the near future, is expected to retain about
2 sharks per year (under no action), on average, for the fleet as a
whole. This equates to about 0.01 sharks per vessel per year, and an
estimated annual compliance cost of less than one dollar per vessel. In
the American Samoa troll fishery, it is estimated that about 0.3 sharks
would be retained, on average, per year (under no action). With about 9
vessels expected to participate in the fishery, this equates to about
0.03 sharks per vessel per year, and an estimated annual compliance
cost of less than one dollar per vessel. The creel survey encountered
no retained sharks in the CNMI troll fishery in 2008-2012, so the best
estimate of lost annual revenue for each of the approximately 35
vessels expected to participate in this fishery is zero.
Oceanic Whitetip Shark and Silky Shark Element (2): Require the
crew, operators, and owners of U.S. fishing vessels used for commercial
fishing for HMS in the Convention Area to release any oceanic whitetip
shark or silky shark caught in the Convention Area: This element would
require the vessel crew, operator, and owner to release any oceanic
whitetip shark or silky shark caught in the Convention Area as soon as
possible after the shark is caught and brought alongside the vessel and
take reasonable steps to ensure its safe release, without compromising
the safety of any persons. This requirement would not impose any new
reporting or recordkeeping requirements. It is not expected to require
any professional skills that the affected vessel owners, operators and
crew do not already possess. This requirement could bring costs in the
form of reduced efficiency of fishing operations, but it is difficult
to assess the costs because it is not possible to predict whether or
how vessel operators and crew would change their release/discard
practices relative to what they do currently. For purse seine vessels,
it is expected that in most cases, the fish would be released after it
is brailed from the purse seine and brought on deck. In these cases,
the labor involved would probably be little different than current
practice for discarded sharks. If the vessel operator and crew
determined that it is possible to release the fish before it is brought
on deck, this would likely involve greater intervention and time on the
part of crew members, with associated labor costs. For longline and
troll vessels, it is expected that the fish would be quickly released
as it is brought to the side of the vessel, such as by cutting the line
or removing the hook. In these cases, no costs would be incurred. In
some cases the vessel operator and crew might determine that it is
necessary to bring the fish on board the vessel before releasing it.
This would involve greater labor than releasing the fish from alongside
the vessel, but the circumstances in these cases might be unchanged
from the current situation, in which case no new costs would be
incurred.
Oceanic Whitetip Shark and Silky Shark Element (3): Require the
crew, operators, and owners of U.S. fishing vessels used for commercial
fishing for HMS in the Convention Area to allow and assist observers in
the collection of oceanic whitetip shark or silky shark samples: This
element would require the vessel crew, operator, and owner to allow and
assist a WCPFC observer to collect samples of dead oceanic whitetip
sharks or silky sharks when requested to do so by the observer. In such
cases, and in any case in which the observer collects a sample of an
oceanic whitetip shark or silky shark, the crew, operator, and owner
would be relieved of the two requirements listed above. Under existing
regulations, operators and crew of vessels with WCPFC Area Endorsements
(i.e., vessels authorized to be used for commercial fishing for HMS on
the high seas in the Convention Area) are already required to assist
observers in the collection of samples. This would effectively expand
that requirement--for just these two shark species--to vessels not
required to have WCPFC Area Endorsements. This requirement would not
impose any new reporting or recordkeeping requirements. It is not
expected to require any professional skills that the affected vessel
owners, operators and crew do not already possess. Although this
element would relieve vessel owners, operators and crew from the
requirements of the first two elements described above in those cases
where the vessel observer collects a sample of an oceanic whitetip
shark or silky shark, it would not be expected to relieve fishing
businesses of the costs identified above for the no-retention
requirement, since the samples would be kept by the observer and would
not be available for sale or other use by the fishing business. This
element could also bring additional costs to fishing businesses because
it would require the owner, operator, and crew to assist the observer
in the collection of samples if requested to do so by the observer.
Observers would be under instructions to collect samples only if they
do so as part of a program that has been specifically authorized by the
WCPFC Scientific Committee, and only from sharks that are dead when
brought alongside the vessel. It is not possible to project how often
observers would request assistance in collecting samples. When it does
occur, it is not expected that sample collection would be so disruptive
as to substantially delay or otherwise impact fishing operations, but
the fishing business could bear small costs in terms of crew labor, and
possibly the loss of storage space that could be used for other
purposes.
Whale Shark Element (1): Prohibit owners, operators, and crew of
U.S.
[[Page 49750]]
fishing vessels used for commercial fishing for HMS in the Convention
Area from setting or attempting to set a purse seine on or around a
whale shark: This requirement would prohibit owners, operators and crew
of fishing vessels from setting or attempting to set a purse seine in
the Convention Area on or around a whale shark if the animal is sighted
prior to the commencement of the set or the attempted set. This
requirement would apply to all U.S. purse seine vessels fishing on the
high seas and in the EEZs in the Convention Area, except the EEZs of
the PNA. This requirement would not impose any new reporting or
recordkeeping requirements. It is not expected to require any
professional skills that the affected vessel owners, operators and crew
do not already possess. In the event that a whale shark is sighted in
the vicinity of a purse seine vessel prior to a desired set, complying
with the proposed rule could cause forgone fishing opportunities and
result in economic losses. It is difficult to project the frequency of
pre-set whale shark-sighting events because such events are not
recorded. Historical data on whale shark catches are available, but
catches are not equivalent to pre-set whale shark sightings, for two
reasons. On the one hand, presumably not all whale sharks within
``sightable'' distance of a set are actually caught (thus, in this
respect, whale shark catch data under-represent pre-set whale shark
sighting events). On the other hand, according to anecdotal information
from purse seine vessel operators, not all captured whale sharks are
seen before the set commences (thus, in this respect, the whale shark
catch data over-represent pre-set whale shark-sighting events).
Nonetheless, historical whale shark catch rates can provide a rough
indicator of the frequency of pre-set whale shark sighting events in
the future. Based on unpublished vessel observer data from the FFA
observer program, the average whale shark catch rate in 2010-2011 for
the U.S. purse seine fishery in the Convention Area, excluding the EEZs
of the PNA, was approximately 2 fish per thousand fishing days. The
average catch rate during that period in the Convention Area as a whole
(including the waters of the PNA EEZs) was about 5 fish per thousand
fishing days. For this analysis, this range of 2-5 events per thousand
fishing days is used as an estimate of pre-set whale shark-sighting
events in the future. Based on the average levels of U.S. purse seine
fishing effort in the Convention Area outside the EEZs of the PNA in
2010 and 2011 (462 and 842 fishing days, respectively; NMFS unpublished
data), it can be expected that approximately 652 fishing days per year
will be spent by the fleet in that area in the future. At that level of
fishing effort, if pre-set whale shark-sighting events occurred in 2 to
5 per thousand fishing days, as described above, they would occur 1.3
to 3.3 times per year, on average, for the fleet as a whole, or 0.03 to
0.08 times per year for each of the 40 vessels in the fleet, on
average. In those instances that a whale shark is sighted prior to an
intended set, the vessel operator would have to wait and/or move the
vessel to find the next opportunity to make a set. The consequences in
terms of time lost and distance travelled and associated costs cannot
be projected with any certainty. At best, the operator would find an
opportunity to make a set soon after the event, and only trivial costs
would be incurred. At worst, the vessel operator would lose the
opportunity to make a set for the remainder of the day. Under this
worst-case assumption, a vessel could lose the net benefits associated
with 0.03 to 0.08 fishing days per year, on average. Those lost net
benefits cannot be estimated because of a lack of fishing cost data,
but information on gross receipts can provide an upper-bound estimate.
Using regional cannery prices in 2012 for each of the three marketable
tuna species, and the U.S. fleet's average catches and fishing days in
2011-2012, the expected gross receipts per fishing day would be about
$60,000. Thus, an upper-bound estimate of the loss in gross revenue
that could occur to a vessel as a result of losing 0.03 to 0.08 fishing
days is approximately $1,800 to $4,800 per year.
Whale Shark Element (2): Require the crew, operator, and owner of
U.S. fishing vessels used for commercial fishing for HMS in the
Convention Area to release any whale shark that is encircled in a purse
seine net: This element would require the crew, operator, and owner of
a fishing vessel to release any whale shark that is encircled in a
purse seine net in the Convention Area, and to do so in a manner that
results in as little harm to the shark as possible, without
compromising the safety of any persons. This requirement would apply to
all U.S. purse seine vessels fishing on the high seas and in the EEZs
of the Convention Area, including the EEZs of the PNA. This requirement
would not impose any new reporting or recordkeeping requirements. It is
not expected to require any professional skills that the affected
vessel owners, operators and crew do not already possess. Unpublished
historical vessel observer data from the FFA observer program indicates
that all whale sharks captured in the U.S. WCPO purse seine fishery are
released; that is, they are not retained or marketed. The release
requirement, therefore, is not expected to have any effect on fishing
operations or to bring any compliance costs. The requirement to release
the sharks in a manner that results in as little harm to the shark as
possible without compromising the safety of any persons would be a new
and potentially burdensome requirement, but it is not possible to
quantitatively assess the cost for two reasons. First, it is not clear
how often whale sharks would be encircled. As indicated above, the
average annual rate by U.S. purse seine vessels in the Convention Area
in 2010 and 2011 was about 5 encirclements per thousand fishing days.
But the rate in the future is expected to be reduced as a result of the
setting prohibition described in the first whale shark element, above.
Nonetheless, if 5 encirclements per thousand fishing days is considered
an upper-bound projection, then at a future fishing effort rate of
7,991 fishing days per year in the Convention Area (based on the
average spent in 2010 and 2011) and 40 vessels in the fleet, an upper-
bound projection of the rate of encirclements per vessel is one per
year, on average. The second reason for the difficulty in assessing the
compliance costs of this requirement is that current vessel practices
regarding whale shark releases are not known in detail. Although data
on the condition of each captured whale shark is available (e.g., based
on unpublished FFA observer data for 2010 and 2011, 68% of captured
whale sharks were released alive, 2% were released dead, and the
condition of the remainder was unknown), these data do not reveal
anything about whether the condition of the released whale sharks could
have been better, or what the vessel crew would have had to have done
to improve the sharks' condition. In conclusion, this requirement might
bring some costs to purse seine vessel operations, in the form of the
crew potentially having to spend more time handling encircled whale
sharks (at most, one per year per vessel, on average) in order to
release them with as little harm as possible.
Whale Shark Element (3): Require the owner and operator of a
fishing vessel that encircles a whale shark to record the incident on a
catch report form: This requirement would require the owner and
operator of a fishing vessel that encircles a whale shark with a purse
seine net in the Convention Area to
[[Page 49751]]
ensure that the incident is recorded by the end of the day on the catch
report form, or Regional Purse Seine Logsheet (RPL) maintained pursuant
to 50 CFR 300.34(c)(1), in the format specified by the NMFS Pacific
Islands Regional Administrator. This requirement would apply to all
U.S. purse seine vessels fishing on the high seas and in the EEZs of
the Convention Area, including the EEZs of the PNA. Because catch and
effort logbooks are already required to be maintained and submitted in
the purse seine fishery, there would be no additional cost associated
with submitting the logbook, but vessels would be required to record
additional information associated with whale shark encirclements. The
required information for each incident would include a description of
the steps taken to minimize harm and an assessment of its condition
upon its release. This additional information requirement would be
added to the information required to be reported under a current
information collection (OMB control number 0648-0218; see the section
on the Paperwork Reduction Act below for more information). As
indicated for the previous element, it is not possible to project the
rate of encirclements with certainty, but one encirclement per vessel
per year, on average, is an upper-bound projection. NMFS estimates that
it would take about 10 minutes to record the required information for
each encirclement. At an estimated labor cost of $25 per hour, the
annual cost per vessel would be about $4.
There would be no disproportionate economic impacts between small
and large vessel-operating entities resulting from this rule.
Furthermore, there would be no disproportionate economic impacts based
on vessel size, gear, or homeport, as all the vessels in the fleets
would be subject to the same requirements and NMFS has not identified
any factors related to vessel size, gear, or homeport that would lead
to disproportionate impacts.
Duplicating, Overlapping, and Conflicting Federal Regulations
NMFS has identified two Federal regulations that overlap with the
proposed regulations.
First, the regulation at 50 CFR 300.25(e)(4) prohibits the crew,
operator, or owner of a U.S. fishing vessel used to fish for HMS in the
eastern Pacific Ocean--specifically, east of 150[deg] W. longitude in
the Pacific Ocean, between the latitudes of 40[deg] N. and 40[deg] S.--
from retaining on board, transshipping, landing, storing, selling, or
offering for sale any part or whole carcass of an oceanic whitetip
shark. The regulation also requires the crew, operator and owner to
release unharmed, to the extent practicable, all oceanic whitetip shark
when brought alongside the vessel. The area of application of this
regulation overlaps with the area of application of the oceanic
whitetip shark requirements of these proposed regulations.
Specifically, both regulations would apply in the area of overlap
between the respective areas of application of the Convention and of
the Antigua Convention, which is the area bounded by the latitudes of
4[deg] S. and 40[deg] S. and the longitudes of 130[deg] W. and 150[deg]
W. Although the two regulations would overlap geographically, they
would not conflict or establish duplicative or redundant requirements
because compliance with one of the two regulations would satisfy
compliance with the other regulation.
Second, the regulation at 50 CFR 300.215(c)(3)(iii) requires that
operators and crew of vessels that are required to have WCPFC Area
Endorsements (i.e., vessels authorized to be used for commercial
fishing for HMS on the high seas in the Convention Area) assist WCPFC
observers in the collection of samples. The proposed rule would
establish a similar requirement for all U.S. vessels used for fishing
for HMS in the Convention Area, but it would be limited to the
collection of oceanic whitetip shark and silky shark samples. Thus, the
two regulations would overlap with each with respect to the two shark
species and vessels required to have WCPFC Area Endorsements. However,
the two regulations would not conflict or establish duplicative or
redundant requirements because compliance with one of the two
regulations would satisfy compliance with the other.
NMFS has not identified any Federal regulations that duplicate or
conflict with the proposed regulations.
Alternatives to the Proposed Rule
NMFS has not identified any significant alternatives to the
proposed rule for the oceanic whitetip shark and silky shark elements,
other than the no-action alternative. NMFS considered alternatives for
the whale shark elements of the proposed rule. As discussed above, the
first element of the proposed rule for the whale shark would prohibit
owners, operators, and crew of fishing vessels from setting or
attempting to set a purse seine in the Convention Area on or around a
whale shark if the animal is sighted prior to the commencement of the
set or the attempted set. This element would apply on the high seas and
in the EEZs of the Convention Area, except for the EEZs of the PNA. CMM
2012-04 states that ``CCMs shall prohibit their flagged vessels from
setting a purse seine on a school of tuna associated with a whale shark
if the animal is sighted prior to the commencement of the set''
(emphasis added). NMFS considered developing alternative means of
implementing the prohibition on setting on a school of tuna, such as
specifying a minimum distance for the prohibition (e.g., no setting
within half a mile of a whale shark sighting) or a minimum time period
for the prohibition (e.g., no setting within 10 minutes of sighting a
whale shark). However, NMFS did not identify any such alternative for
this element that would be reasonable and feasible. After a whale shark
is sighted, it is unclear where and when it will next be sighted, since
sharks do not have to return to the surface regularly to breathe.
Therefore, NMFS determined that there is only one reasonable and
feasible manner of implementing this element of the proposed rule.
CMM 2012-04 also states that for fishing activities in the EEZs of
CCMs north of 30[deg] N. latitude, CCMs shall implement either the
provisions of CMM 2012-04 or compatible measures consistent with the
obligations under CMM 2012-04. The U.S. purse seine fleet does not fish
north of 30[deg] N. latitude in the WCPO. Thus, rather than attempting
to develop a separate set of ``compatible measures'' for EEZs of CCMs
north of 30 [deg]N. latitude that may or may not be triggered by any
actual U.S. purse seine operations, NMFS decided to implement the
provisions of CMM 2012-04 for all EEZs in the Convention Area (with the
exception of the first element not being applicable to the EEZs of the
PNA, as described above). NMFS did not identify any other alternatives
for any of the elements of the proposed rule.
Taking no action could result in lesser adverse economic impacts
than the proposed action for many affected entities, but NMFS has
determined that the no-action alternative would fail to accomplish the
objectives of the WCPFC Implementation Act, including satisfying the
obligations of the United States as a Contracting Party to the
Convention.
Paperwork Reduction Act
This proposed rule contains a change request to a collection-of-
information subject to the Paperwork Reduction Act (PRA) that has been
approved by the Office of Management and Budget (OMB) under control
number 0648-0218, ``South Pacific Tuna Act'' (the whale shark
encirclement reporting requirement). The public reporting burden for
the catch report form (also
[[Page 49752]]
known as the RPL) under that collection-of-information is estimated to
average one hour per response (i.e., per fishing trip), including the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Under this proposed rule, in the event
that a whale shark is encircled in a purse seine net, information about
that event would be required to be included in the catch report form.
Providing this additional information would increase the reporting
burden by approximately 10 minutes per encirclement, which, given an
estimated one encirclement per year and five fishing trips per year, on
average, equates to approximately 2 minutes per fishing trip or per
response. Therefore, the new estimated burden per response (i.e., per
fishing trip) for the catch report form would be 62 minutes. Send
comments regarding this burden estimate, or any other aspect of this
data collection, including suggestions for reducing the burden, to
Michael D. Tosatto, Regional Administrator, NMFS PIRO (see ADDRESSES)
and by email to [email protected] or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: August 19, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300 is
proposed to be amended as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
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, the definition of ``Parties to the Nauru
Agreement'' is added, in alphabetical order, to read as follows:
Sec. 300.211 Definitions.
* * * * *
Parties to the Nauru Agreement means the parties to the Nauru
Agreement Concerning Cooperation in the Management of Fisheries of
Common Interest, as specified on the Web site of the Parties to the
Nauru Agreement at www.pnatuna.com.
* * * * *
0
3. In Sec. 300.218, paragraph (g) is added to read as follows:
Sec. 300.218 Reporting and recordkeeping requirements.
* * * * *
(g) Whale shark encirclement reports. The owner and operator of a
fishing vessel of the United States used for commercial fishing in the
Convention Area that encircles a whale shark (Rhincodon typus) with a
purse seine in the Convention Area shall ensure that the incident is
recorded by the end of the day on the catch report forms maintained
pursuant to Sec. 300.34(c)(1), in the format specified by the Pacific
Islands Regional Administrator. This paragraph does not apply to 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.
0
4. In Sec. 300.222, paragraphs (rr), (ss), (tt), (uu), and (vv) are
added to read as follows:
Sec. 300.222 Prohibitions.
* * * * *
(rr) Fail to submit, or ensure submission of, a whale shark
encirclement report as required in Sec. 300.218(g).
(ss) Set or attempt to set a purse seine on or around a whale shark
(Rhincodon typus) in contravention of Sec. 300.223(g).
(tt) Fail to release a whale shark encircled in a purse seine net
of a fishing vessel as required in Sec. 300.223(h).
(uu) Use a fishing vessel to retain on board, transship, store, or
land any part or whole carcass of an oceanic whitetip shark
(Carcharhinus longimanus) or silky shark (Carcharhinus falciformis) in
contravention of Sec. 300.226(a).
(vv) Fail to release an oceanic whitetip shark or silky shark as
required in Sec. 300.226(b).
0
5. In Sec. 300.223, paragraphs (g) and (h) are added to read as
follows:
Sec. 300.223 Purse seine fishing restrictions.
* * * * *
(g) Owners, operators, and crew of fishing vessels of the United
States used for commercial fishing for HMS in the Convention Area shall
not set or attempt to set a purse seine in the Convention Area on or
around a whale shark (Rhincodon typus) if the animal is sighted at any
time prior to the commencement of the set or the attempted set. This
paragraph does not apply to 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, or to areas under the
national jurisdiction of the Parties to the Nauru Agreement.
(h) The crew, operator, and owner of a fishing vessel of the United
States used for commercial fishing for HMS in the Convention Area must
release any whale shark that is encircled in a purse seine net in the
Convention Area, and take reasonable steps for its safe release,
without compromising the safety of any persons. This paragraph does not
apply to 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.
0
6. Section 300.226 is added to read as follows:
Sec. 300.226 Oceanic whitetip shark and silky shark.
(a) The crew, operator, and owner of a fishing vessel of the United
States used for commercial fishing for HMS cannot retain on board,
transship, store, or land any part or whole carcass of an oceanic
whitetip shark (Carcharhinus longimanus) or silky shark (Carcharhinus
falciformis) that is caught in the Convention Area, unless subject to
the provisions of paragraph (c) of this section.
(b) The crew, operator, and owner of a fishing vessel of the United
States used for commercial fishing for HMS must release any oceanic
whitetip shark or silky shark caught in the Convention Area as soon as
possible after the shark is caught and brought alongside the vessel,
and take reasonable steps for its safe release, without compromising
the safety of any persons, unless subject to the provisions of
paragraph (c) of this section.
[[Page 49753]]
(c) Paragraphs (a) and (b) of this section do not apply in the
event that a WCPFC observer collects, or requests the assistance of the
vessel crew, operator, or owner in the observer's collection of,
samples of oceanic whitetip shark or silky shark in the Convention
Area.
(d) The crew, operator, and owner of a fishing vessel of the United
States used for commercial fishing for HMS in the Convention Area must
allow and assist a WCPFC observer to collect samples of oceanic
whitetip shark or silky shark in the Convention Area, if requested to
do so by the WCPFC observer.
[FR Doc. 2014-19962 Filed 8-21-14; 8:45 am]
BILLING CODE 3510-22-P