[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

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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