[Federal Register Volume 82, Number 150 (Monday, August 7, 2017)]
[Proposed Rules]
[Pages 36724-36727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16448]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 170712657-7659-01]
RIN 0648-BG85


International Fisheries; Pacific Tuna Fisheries; Restrictions on 
Fishing for Sharks in the Eastern Pacific Ocean

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 the Tuna Conventions Act to 
implement Resolution C-16-05 (Resolution on the Management of Shark 
Species) of the Inter-American Tropical Tuna Commission (IATTC) adopted 
in July 2016. Per the Resolution, this proposed rule would require 
purse seine vessel owners, operators, and crew to follow specified 
release requirements for sharks in the eastern Pacific Ocean (EPO). The 
rule would also prohibit longline vessels targeting tuna or swordfish 
in the EPO from using ``shark lines'' (a type of fishing gear used on 
longline vessels to target sharks). This proposed rule is necessary for 
the United States to satisfy its obligations as a member of the IATTC.

DATES: Comments on the proposed rule and supporting documents must be 
submitted in writing by September 6, 2017.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2017-0068, by any of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0068, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
    Mail: Submit written comments to Daniel Studt, NMFS West Coast 
Region Long Beach Office, 501 W. Ocean Blvd., Suite 4200, Long Beach, 
CA 90802. Include the identifier ``NOAA-NMFS-2017-0068'' in the 
comments.
    Instructions: Comments must be submitted by one of the above 
methods to ensure they are received, documented, and considered by 
NMFS. Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered. 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, 
address, etc.) submitted voluntarily by the sender will be publicly 
accessible. Do not submit confidential business information, or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous).
    Copies of the draft Regulatory Impact Review and other supporting 
documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2017-0068, or by contacting the 
Regional Administrator, Barry A. Thom, NMFS West Coast Region, 1201 NE 
Lloyd Boulevard, Suite 1100, Portland, OR 97232-1274, or 
[email protected].

FOR FURTHER INFORMATION CONTACT: Daniel Studt, NMFS, West Coast Region, 
562-980-4073.

SUPPLEMENTARY INFORMATION: 

Background on the IATTC

    The United States is a member of the IATTC, which was established 
under the 1949 Convention for the Establishment of an Inter-American 
Tropical Tuna Commission. In 2003, the IATTC adopted the Convention for 
the Strengthening of the IATTC Established by the 1949 Convention 
between the United States of America and the Republic of Costa Rica 
(Antigua Convention). The Antigua Convention entered into force in 
2010. The United States acceded to the Antigua Convention on February 
24, 2016. The full text of the Antigua Convention is available at: 
https://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf.
    The IATTC consists of 21 member nations and four cooperating non-
member nations and facilitates scientific research into, as well as the 
conservation and management of, tuna and tuna-like species in the IATTC 
Convention Area. The IATTC Convention Area is defined as waters of the 
EPO within the area bounded by the west coast of the Americas and by 
50[deg] N. latitude, 150[deg] W. longitude, and 50[deg] S. latitude. 
The IATTC maintains a scientific research and fishery monitoring 
program and regularly assesses the status of tuna, shark, and billfish 
stocks in the EPO to determine appropriate catch limits and other 
measures deemed necessary to promote sustainable fisheries and prevent 
the overexploitation of these stocks.

International Obligations of the United States Under the Antigua 
Convention

    As a Party to the Antigua Convention and a member of the IATTC, the 
United States is legally bound to implement certain decisions of the 
IATTC. The Tuna Conventions Act (16 U.S.C. 951 et seq.), as amended on 
November 5, 2015, by Title II of Public Law 114-81, directs that the 
Secretary of Commerce, in consultation with the Secretary of State and, 
with respect to enforcement measures, the Secretary of the Department 
of Homeland Security, may promulgate such regulations as may be 
necessary to carry out the United States' international obligations 
under the Antigua Convention, including recommendations and decisions 
adopted by the IATTC. The Secretary of Commerce's authority to 
promulgate such regulations has been delegated to NMFS.

Resolution on the Management of Shark Species

    The IATTC adopted Resolution C-16-05 by consensus at its 90th 
meeting in July 2016 in response to the IATTC scientific staff's 
conservation recommendations to adopt release requirements for sharks 
caught by purse seine vessels and to prohibit the use of shark lines by 
longline vessels. The main objective of Resolution C-16-05 is to 
promote the conservation of shark species in the EPO by reducing 
incidental catch mortalities in IATTC fisheries. Although U.S. 
commercial fishing vessels in the EPO do not target sharks, some are 
caught incidentally.
    The resolution includes release requirements for sharks caught on 
purse seine vessels, which is expected to

[[Page 36725]]

increase the chance of survival. Based on summarized catch data from 
the IATTC, silky shark (Carcharhinus falcifornmis) and hammerhead shark 
(Sphyrna spp.) are among the shark species most frequently caught by 
purse seine vessels fishing for tuna in the IATTC Convention Area. 
Global concern for these species of sharks has increased in recent 
years as evidenced by the listing of scalloped hammerhead shark 
(Sphyrna lewini) in Appendix II of the Convention on International 
Trade in Endangered Species of Wild Fauna and Flora (CITES) in 
September 2014 and the future listing of silky shark in Appendix II in 
October 2017. In addition, NMFS designated the Eastern Pacific ocean 
distinct population segment of scalloped hammerhead shark as endangered 
under the Endangered Species Act (79 FR 38213; July 2014), and it is 
this population that is incidentally caught by tuna fishing vessels in 
the IATTC Convention Area.
    Resolution C-16-05 includes two components that need to be 
implemented through rulemaking: (1) Release requirements for sharks 
caught by purse seine vessels, and (2) prohibiting the use of ``shark 
lines'' on longline vessels fishing in the IATTC Convention Area.
    The first component of the Resolution calls for IATTC members and 
cooperating non-members (CPCs) to require purse seine vessels to follow 
requirements for the release of sharks caught in the IATTC Convention 
Area. Per the Resolution, any shark caught on a purse seine vessel in 
the IATTC Convention Area, whether live or dead, and that is not 
retained, must be promptly released unharmed, to the extent 
practicable, as soon as it is seen in the net or on the deck, without 
compromising the safety of any persons. If a shark is live when caught, 
the shark must be released out of the net by directly releasing it from 
the brailer into the ocean. Sharks that cannot be released without 
compromising the safety of persons or the sharks before being landed on 
deck must be returned to the water as soon as possible, either 
utilizing a ramp from the deck connecting to an opening on the side of 
the vessel, or through escape hatches. If ramps or escape hatches are 
not available, the sharks must be lowered with a sling or cargo net, 
using a crane or similar equipment, if available. The Resolution also 
includes provisions that prohibit the use of gaffs, hooks, or similar 
instruments in the handling of sharks, the lifting of sharks by the 
head, tail, gill slits, or spiracles, or by using bind wire against or 
inserted through the body, punching holes through the bodies of sharks 
(e.g., to pass a cable through for lifting the shark). In addition, the 
proposed rule would prohibit the towing of a whale shark (Rhincondon 
typus) out of a purse seine net (e.g., using towing ropes).
    The second component of the Resolution prohibits longline vessels 
targeting tuna or swordfish in the IATTC Convention Area from using 
``shark lines.'' Shark lines are a type of fishing gear used to target 
sharks and consist of an individual hooked line or hooked lines 
attached to the floatline, or directly to the floats of longline gear, 
and deployed in the water column at depths shallower than the mainline.

Proposed Regulations for Sharks

    This proposed rule would implement the two provisions of Resolution 
C-16-05, as described above, for U.S. commercial fishing vessels 
fishing for tuna or tuna-like species in the IATTC Convention Area. In 
addition, this proposed rule would also revise related regulations for 
accuracy and clarification purposes.
    NMFS regulations already include fishing restrictions for shark 
species in the IATTC Convention Area. For example, NMFS regulations 
already require U.S. purse seine vessels fishing for tuna or tuna-like 
species to release all sharks, except those being retained for 
consumption aboard the vessel, as soon as practicable after being 
identified on board the vessel during the brailing operation. In 
addition, regulations at 50 CFR 300.27 already require U.S. purse seine 
vessels to ensure reasonable steps are taken to ensure safe release of 
any whale shark that is encircled in a purse seine net in the IATTC 
Convention Area.
    This proposed rule would revise regulations at 50 CFR 300.27 to 
include more specific release requirements for sharks on purse seine 
vessels. The proposed regulations would require that any shark caught 
on a purse seine vessel in the IATTC Convention Area, whether live or 
dead, be promptly released unharmed, to the extent practicable, as soon 
as it is seen in the net or on the deck, without compromising the 
safety of any persons. The proposed regulations also include specific 
requirements for the release of live sharks when caught in the IATTC, 
as described above.
    In addition, this proposed rule would prohibit U.S. commercial 
longline vessels fishing for tuna or swordfish from using ``shark 
lines'' in the IATTC Convention Area. Shark lines are defined as a type 
of fishing gear consisting of an individual line or lines attached to 
the floatline or directly to the floats of longline gear and are 
typically used to target sharks. Although U.S. longline vessels do not 
use shark lines when fishing in the IATTC Convention Area, this 
provision of the Resolution was intended to prohibit this gear in the 
EPO for all IATTC CPCs.

Classification

    The NMFS Assistant Administrator has preliminarily determined that 
this proposed rule is consistent with the Tuna Conventions Act and 
other applicable laws, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    There are no new collection-of-information requirements associated 
with this action that are subject to the Paperwork Reduction Act (PRA), 
and existing collection-of-information requirements still apply under 
the following Control Numbers: 0648-0148, 0648-0214, and 0648-0593. 
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 Office of Management and Budget control number.
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the 
Chief Counsel for Regulation of the Department of Commerce certified to 
the Chief Counsel for Advocacy of the Small Business Administration 
that this proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. The 
rationale for the certification is provided in the following 
paragraphs.

    As described previously in the SUPPLEMENTARY INFORMATION section, 
the proposed regulations would implement IATTC Resolution C-16-05, 
which would establish fishing restrictions on U.S. purse seine and 
longline vessels fishing in the IATTC Convention Area.
    The United States Small Business Administration (SBA) defines a 
``small business'' (or ``small entity'') as one with annual revenue 
that meets or is below an established size standard. On December 29, 
2015, NMFS issued a final rule establishing a small business size 
standard of $11 million in annual gross receipts for all businesses 
primarily engaged in the commercial fishing industry (NAICS 11411) for 
Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, 
December 29, 2015). The $11 million standard became effective on July 
1, 2016, and is

[[Page 36726]]

to be used in place of the U.S. SBA current standards of $20.5 million, 
$5.5 million, and $7.5 million for the finfish (NAICS 114111), 
shellfish (NAICS 114112), and other marine fishing (NAICS 114119) 
sectors of the U.S. commercial fishing industry in all NMFS rules 
subject to the RFA after July 1, 2016. Id. at 81194. The new standard 
results in fewer commercial finfish businesses being considered small.
    NMFS prepared analyses for this regulatory action in light of the 
new size standard. All of the entities directly regulated by this 
regulatory action are commercial finfish fishing businesses. Under the 
new size standards, the action on purse seine restriction on sharks 
would affect both large and small businesses, but the affected longline 
vessels are all considered to be small businesses.
    There are two components to the U.S. tuna purse seine fishery in 
the EPO: (1) Purse seine vessels with at least 363 metric tons (mt) of 
fish hold volume (size class 6 vessels) that typically have been based 
in the western and central Pacific Ocean (WCPO), and (2) coastal purse 
seine vessels with smaller fish hold volume that are based on the U.S. 
West Coast. Because this regulation would apply to purse seine vessels 
that catch shark, and there is no record of the coastal purse seine 
vessels catching shark, NMFS does not expect these regulations to 
impact the smaller coastal purse seine vessels.
    As of May 4, 2017, there are 17 size class 6 purse seine vessels on 
the IATTC Regional Vessel Register. The number of size class 6 purse 
seine vessels on the IATTC Regional Vessel Register has increased 
substantially in the past three years, due in part to uncertainty 
regarding fishing access pursuant to the Treaty on Fisheries between 
the Governments of Certain Pacific Island States and the Government of 
the United States of America (aka the South Pacific Tuna Treaty), for 
which negotiations were concluded in 2016. Size class 6 purse seine 
vessels land most of the yellowfin, skipjack, and bigeye tuna catch in 
the EPO. Ex-vessel price information for class size 6 purse seine 
vessels that fished exclusively in the EPO in 2015 and 2016 specific to 
the individual vessels are not available to NMFS because these vessels 
did not land on the U.S. West Coast, and the cannery receipts are not 
available through the IATTC. However, estimates for large purse seine 
vessels based in the WCPO that fish in both the EPO and WCPO may be 
used as a proxy for U.S. large purse seine vessels. The number of these 
U.S. purse seine vessels is approximated by the number with Western and 
Central Pacific Fisheries Commission (WCPFC) Area Endorsements, which 
are the NMFS-issued authorizations required to fish commercially for 
highly migratory species (HMS) on the high seas in the WCPFC Convention 
Area. As of May 2017, the number of purse seine vessels with WCPFC Area 
Endorsements was 37. Neither gross receipts nor ex-vessel price 
information specific to individual fishing vessels are available to 
NMFS, so NMFS applied indicative regional cannery prices--as 
approximations of ex-vessel prices--to annual catches of individual 
vessels to estimate their annual receipts. Indicative regional cannery 
prices are available through 2014 (developed by the Pacific Islands 
Forum Fisheries Agency; available at https://www.ffa.int/node/425). 
Using this approach, NMFS estimates that among the affected vessels, 
the range in annual average receipts in 2012 through 2014 was $3 
million to $20 million and the median was about $13 million.
    U.S. purse seine vessels fishing in the IATTC Convention Area 
incidentally catch a relatively small number of sharks. Since at least 
2005, the observer coverage rates in the EPO on class size 6 purse 
seine vessels have been at 100 percent. Logbook data from 2015 and 2016 
recorded a total of 3,960 sharks incidentally caught by size class 6 
purse seine vessels operating in the IATTC Convention Area, which were 
released alive or discarded. This resulted in an average of roughly 
2.29 sharks per fishing set caught and discarded or released alive by 
size class 6 purse seine vessels operating in the IATTC Convention area 
in 2015 and 2016. The proposed regulations for shark release 
requirements on purse seine vessels may slow fishing operations of some 
purse seine vessels that incidentally catch sharks due to additional 
time burden for releasing them by implementing the release 
requirements. In addition to the additional time burden for releasing 
sharks, some tuna may be incidentally released when sharks are directly 
released out of the brailer into the ocean, if any tuna are also 
scooped up into the brailer along with sharks during the process. The 
amount of tuna incidentally released would vary depending on the 
position of the shark in the net in relation to the tuna, accuracy of 
the crew member in targeting the shark with the brailer, and how large 
a brailer is being used, among others factors. In addition, some large 
purse seine vessels may already be voluntarily following some of these 
release procedures, such as the best practices for release established 
by the International Seafood Sustainability Foundation, in the IATTC 
Convention Area.
    U.S. West Coast vessels with deep-set longline gear primarily 
target tuna species with a small percentage of swordfish and other 
highly migratory species taken incidentally. U.S. West Coast-based 
longline vessels fish primarily in the EPO and are currently restricted 
to fishing with deep-set longline gear outside of the U.S. West Coast 
EEZ. Recently, the number of Hawaii-permitted longline vessels that 
have landed in U.S. West Coast ports has increased from one vessel in 
2006 to 18 vessels in 2016. In 2016, 931 mt of highly migratory species 
were landed by Hawaii permitted longline vessels with an average ex-
vessel revenue of approximately $303,287 per vessel. Since at least 
2005, the observer coverage rates in the EPO on deep-set longline 
vessels have been a minimum of 20 percent. While some sharks are caught 
incidentally, U.S. commercial longline vessels do not use shark lines 
while fishing in the EPO. As such, this proposed rule is not expected 
to affect these small entities.
    The proposed regulation is not expected to have a significant 
economic impact on a substantial number of small entities. Only some of 
the entities for which these proposed regulations would apply are 
considered small businesses; however, disproportional economic effects 
are not expected between affected small and large businesses. 
Regulations at 50 CFR 300.27 already require purse seine vessels to 
release all sharks, except those being retained for consumption aboard 
the vessel, as soon as practicable after being identified on board the 
vessel during the brailing operation. In addition, regulations at 50 
CFR 300.27 already require purse seine vessels to ensure reasonable 
steps are taken to ensure safe release of any whale shark that is 
encircled in a purse seine net. This proposed rule would revise 
regulations at 50 CFR 300.27 to specify the release requirements for 
sharks. As stated above, U.S. longline vessels do not use shark lines 
while fishing for tuna or swordfish in the EPO. Therefore, the proposed 
regulation is not expected to impact these small entities.
    The proposed actions are not expected to substantially change the 
typical fishing practices of affected vessels, and any impact to the 
income of U.S. vessels would be minor. As a result, an Initial 
Regulatory Flexibility Analysis is not required, and one was not 
prepared for this proposed rule.

[[Page 36727]]

List of Subjects in 50 CFR Part 300

    Fish, Fisheries, Fishing, Fishing vessels, International 
organizations, Marine resources, Reporting and recordkeeping 
requirements, Treaties.

    Dated: August 1, 2017.
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

Subpart C--Eastern Pacific Tuna Fisheries

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

    Authority:  16 U.S.C. 951 et seq.

0
2. In Sec.  300.21, add a definition for ``Shark line'' in alphabetical 
order to read as follows:


Sec.  300.21  Definitions.

* * * * *
    Shark line means: A type of fishing gear used to target sharks and 
consisting of an individual hooked line or hooked lines attached to the 
floatline or directly to the floats of longline gear and deployed in 
the water column at depths shallower than the mainline.
* * * * *
0
3. In Sec.  300.24, revise paragraphs (w), (x), (cc), and (dd), and add 
paragraphs (jj) through (kk) to read as follows:


Sec.  300.24   Prohibitions.

* * * * *
    (w) Set or attempt to set a purse seine on or around a whale shark 
(Rhincodon typus) in contravention of Sec.  300.27(g).
    (x) Fail to release a whale shark encircled in a purse seine net of 
a fishing vessel as required in Sec.  300.27(h).
* * * * *
    (cc) To retain on board, transship, store, land, sell, or offer for 
sale any part or whole carcass of a mobulid ray, as described in Sec.  
300.27(i).
    (dd) Fail to handle or release a mobulid ray as required in Sec.  
300.27(j).
* * * * *
    (jj) Fail to handle or release a shark as required in Sec.  
300.27(k).
    (kk) Use a shark line in contravention of Sec.  300.27(l).
0
4. In Sec.  300.27, revise paragraphs (b) and (h), and add paragraphs 
(k) and (l) to read as follows:


Sec.  300.27  Incidental catch and tuna retention requirements.

* * * * *
    (b) Release requirements for non-tuna species on purse seine 
vessels. All purse seine vessels must release all billfish, ray (not 
including mobulid rays, which are subject to paragraph (i) of this 
section), dorado (Coryphaena hippurus), and other non-tuna fish 
species, except those being retained for consumption aboard the vessel, 
as soon as practicable after being identified on board the vessel 
during the brailing operation. Sharks caught in the IATTC Convention 
Area and that are not retained for consumption aboard the vessel (other 
than silky shark, oceanic whitetip shark, and whale shark, which may 
not be retained for consumption) must be released according to the 
requirements in paragraph (k) of this section.
* * * * *
    (h) Whale shark release. The crew, operator, and owner of a fishing 
vessel of the United States commercially fishing for tuna in the 
Convention Area must release as soon as possible, any whale shark that 
is encircled in a purse seine net, and must ensure that all reasonable 
steps are taken to ensure its safe release. No whale shark may be towed 
out of a purse seine net (e.g., using towing ropes).
* * * * *
    (k) Shark handling and release requirements for purse seine 
vessels. The crew, operator, and owner of a U.S. commercial purse seine 
fishing vessel must promptly release unharmed, to the extent 
practicable, any shark (whether live or dead) caught in the IATTC 
Convention Area, as soon as it is seen in the net or on the deck, 
without compromising the safety of any persons. If a shark is live when 
caught, the crew, operator, or owner must follow release procedures in 
the following two paragraphs.
    (1) Sharks must be released out of the purse seine net by directly 
releasing the shark from the brailer into the ocean. Sharks that cannot 
be released without compromising the safety of persons or the sharks 
before being landed on deck must be returned to the water as soon as 
possible, either utilizing a ramp from the deck connecting to an 
opening on the side of the boat, or through escape hatches. If ramps or 
escape hatches are not available, the sharks must be lowered with a 
sling or cargo net, using a crane or similar equipment, if available.
    (2) No shark may be gaffed or hooked, lifted by the head, tail, 
gill slits or spiracles, or lifted by using bind wire against or 
inserted through the body, and no holes may be punched through the 
bodies of sharks (e.g., to pass a cable through for lifting the shark).
    (l) Shark line prohibition for longline vessels. Any U.S. longline 
vessel used to fish for tuna or swordfish is prohibited from using any 
shark line in the IATTC Convention Area.

[FR Doc. 2017-16448 Filed 8-4-17; 8:45 am]
 BILLING CODE 3510-22-P