[Federal Register Volume 85, Number 16 (Friday, January 24, 2020)]
[Proposed Rules]
[Pages 4250-4257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00880]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216 and 300
[Docket No. 200113-0011
RIN 0648-BJ23
International Fisheries; Pacific Tuna Fisheries; Fishing
Restrictions for Silky Shark, Fish Aggregating Device, and Observer
Safety 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 Resolutions C-19-01 (Amendment to Resolution C-18-05 on the
Collection and Analyses of Data on Fish-Aggregating Devices); C-19-05
[[Page 4251]]
(Amendment to the Resolution C-16-06 Conservation Measures for Shark
Species, with Special Emphasis on the Silky Shark (Carcharhinus
Falciformis), for the Years 2020 and 2021); and C-18-07 (Resolution on
Improving Observer Safety at Sea: Emergency Action Plan) of the Inter-
American Tropical Tuna Commission (IATTC). NMFS also proposes
regulations under the Marine Mammal Protection Act to implement
Resolution A-18-03 (On Improving Observer Safety At Sea: Emergency
Action Plan) of the Agreement on the International Dolphin Conservation
Program (AIDCP). This proposed rule is necessary for the United States
to satisfy its obligations as a member of the IATTC and Party to the
AIDCP.
DATES: Comments on the proposed rule and supporting documents must be
submitted in writing by February 24, 2020.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2019-0149, 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-2019-0149, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Rachael Wadsworth, NMFS
West Coast Region Long Beach Office, 501 W Ocean Blvd., Suite 4200,
Long Beach, CA 90802. Include the identifier ``NOAA-NMFS-2019-0149'' 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-2019-0149, 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: Rachael Wadsworth, NMFS at 562-980-
4036, or Will Stahnke at 562-980-4088.
SUPPLEMENTARY INFORMATION:
Background on the AIDCP and IATTC
The AIDCP has been ratified or acceded by 13 countries, including
the United States, and is applied provisionally by another two. Among
the objectives of the AIDCP are to reduce dolphin mortalities and
ensure the long-term sustainability of the tuna stocks within the AIDCP
Agreement Area. The full text of the AIDCP Agreement is available at:
https://www.iattc.org/PDFFiles/AIDCP/_English/AIDCP-amended-Oct-2017.pdf.
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. Effective in 2010, the 1949 Convention was
updated by 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 full text of
the Antigua Convention is available online: https://www.iattc.org/PDFFiles/IATTC-Instruments/_English/Antigua_Convention_Jun_2003.pdf.
The IATTC consists of 21 member nations and five cooperating non-
member nations. It 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
eastern Pacific Ocean (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,
sharks, and billfish stocks in the IATTC Convention Area 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 and Agreement on International Dolphin Conservation Program
(AIDCP)
As a Party to the Antigua Convention and AIDCP Agreement and a
member of the IATTC and AIDCP, the United States is legally bound to
implement decisions of the IATTC under the Tuna Conventions Act (16
U.S.C. 951 et seq.) and the AIDCP under the Marine Mammal Protection
Act (16 U.S.C. 1361 et seq.). The Tuna Conventions Act (16 U.S.C. 951
et seq.) directs the Secretary of Commerce, in consultation with the
Secretary of State and, with respect to enforcement measures, the U.S.
Coast Guard, to promulgate such regulations as may be necessary to
carry out the United States' obligations under the Antigua Convention,
including recommendations and decisions adopted by the IATTC. The
authority of the Secretary of Commerce to promulgate such regulations
has been delegated to NMFS.
IATTC and AIDCP Resolutions
At its 94th Meeting of the IATTC in July 2019, the IATTC adopted
amendments to two Resolutions: C-19-01 (Amendment to Resolution C-18-05
on the Collection and Analyses of Data on Fish-Aggregating Devices) and
C-19-05 (Amendment to the Resolution C-16-06 Conservation Measures for
Shark Species, with Special Emphasis on the Silky Shark (Carcharhinus
Falciformis), for the Years 2020 and 2021). Resolution C-19-01 amended
the previously adopted Resolution C-18-05 on fish aggregating devices
(FADs) and revised data collection requirements to reduce the
duplicative reporting on FAD interactions. The proposed regulations
would eliminate duplicative reporting of FAD data that is currently
required from purse seine vessel captains but that is already being
collected by onboard observers. Captains would still be required to
provide the observer with the FAD identification code and, as
appropriate, the other information in the standard format. Resolution
C-19-05 amended the previously adopted resolution C-16-06 on silky
shark and extended its applicability through 2021. The amendments
implement further restrictions on longline vessels and increase
flexibility for accidental retention on purse seine vessels.
The IATTC adopted Resolution C-18-07 (Resolution on Improving
Observer Safety at Sea: Emergency Action Plan) in August 2018. The
Parties to the AIDCP adopted Resolution A-18-03 (On Improving Observer
Safety at Sea: Emergency Action Plan) in October
[[Page 4252]]
2018. These Resolutions were adopted to strengthen protections for
observers in longline and transshipment observer programs required by
the IATTC and on purse seine vessels required by the AIDCP. The
observer safety Resolutions detail responsibilities for vessel owners
and operators, responsibilities for IATTC and AIDCP members to which
fishing vessels are flagged, responsibilities for members that have
jurisdiction over ports, and responsibilities for observer providers.
Proposed Regulations
This proposed rule would implement provisions in three IATTC
Resolutions and one AIDCP Resolution related to FAD data reporting,
silky sharks, and observer safety. This proposed rule would apply to
U.S. commercial fishing vessels that fish for tuna or tuna-like species
in the IATTC Convention Area.
First, the proposed rule would revise existing regulations for FAD
data collection requirements to remove the reporting requirements for
captains of purse seine vessels fishing on FADs that have observers
onboard. Because IATTC observers are now expected to be collecting all
the information previously required on the FAD data collection form,
the Commission removed this requirement for captains. Captains would
still be required to provide the observer with the FAD identification
code and, as appropriate, the other information in the standard format.
On purse seine vessels without an observer aboard, the captain would
still be responsible for recording the information on the FAD form
developed by the IATTC staff.
Second, the proposed rule would ban the retention of silky shark by
U.S. longline vessels. Paragraph 5 of Resolution C-19-05 on silky shark
requires establishment of an inspection system at landing ports for
members and cooperating non-members (CPCs) that allow retention of
silky shark by longline vessels. However, when NMFS considered the time
and effort required to implement a port inspection system and the
impacts on U.S. longline vessels that would be subjected to such an
inspection process, implementing the port inspection requirement of the
Resolution would be more of a burden to the U.S. government and the
public than simply prohibiting all retention of silky shark on U.S.
longline vessels in the IATTC Convention Area. Therefore, this proposed
rule would institute such a ban. Because U.S. longline vessels fishing
in the IATTC Convention Area do not target, and infrequently catch,
silky sharks, a retention ban for longline vessels would not impact
current fishing practices. Data from 2008 to 2015 indicate that
virtually all incidentally caught silky sharks in the IATTC Convention
Area were released by U.S. longline vessels, and almost all were
released alive. In addition, such a prohibition in the eastern Pacific
Ocean would be consistent with U.S. regulations in the western Pacific
Ocean. Since 2015, U.S. vessels fishing in the western and central
Pacific Ocean have been subject to a prohibition on the retention on
board, transshipping, storing, or landing any part or whole carcass of
a silky shark that is caught in the Western and Central Pacific
Fisheries Commission Convention Area (50 CFR 300.226).
The proposed rule would also increase flexibility for accidental
retention of silky shark on purse seine vessels. Since January 2017 the
IATTC Resolution and U.S. regulations have prohibited retention of
silky shark on purse seine vessels caught in the IATTC Convention Area.
This proposed rule would allow for exemptions in the case of any silky
shark that is not seen during fishing operations and is delivered into
the vessel hold. In such case, the silky shark may be stored on board
and landed, but the vessel owner or operator must surrender the whole
silky shark to a government authority present at the point of landing.
In U.S. ports the responsible governmental authority is the NOAA Office
of Law Enforcement divisional office nearest to the port. If government
authorities are unavailable, the whole silky shark must not be sold or
bartered but must be donated for purposes of domestic human consumption
consistent with relevant laws and policies. The vessel owner, or
operator shall report any silky sharks surrendered in this manner to
the IATTC Secretariat by recording the incident in the note section of
the IATTC Pacific Tuna Regional Logbook.
U.S. purse seine vessels do not target or intentionally retain
silky shark in the IATTC Convention Area, yet they are caught
incidentally and are primarily discarded. The proposed regulations are
expected to provide regulatory relief from the previous prohibition on
the retention of silky shark that are unintentionally caught and frozen
during fishing operations, which is an infrequent event for U.S. purse
seine vessels.
Observer Safety
Third, the proposed rule would implement provisions of Resolutions
C-18-07 and A-18-03 to strengthen protections for observers in longline
and transshipment observer programs required by the IATTC and on purse
seine vessels required by the AIDCP. Paragraph 2 of the measures also
provides that the measure shall not prejudice the rights of members to
enforce their laws with respect to the safety of observers consistent
with international law.
The observer safety Resolutions detail responsibilities for vessel
owners and operators, responsibilities for IATTC and AIDCP members to
which fishing vessels are flagged, responsibilities for members that
have jurisdiction over ports, and responsibilities for observer
providers. Most of the requirements in these Resolutions are already
required by procedures implemented by the U.S. Coast Guard (USCG) in
its marine casualty regulations at 46 CFR part 4. This proposed rule is
intended to fill the gaps between the existing USCG procedures and
these Resolutions. There are two categories of observer safety
incidents (serious illness and harassment) that are specified in the
IATTC and AIDCP decisions and are not included in USCG marine casualty
regulations. This proposed rule would not expand the USCG marine
casualty regulations to include serious illness and harassment of
observers.
Both Resolutions detail a number of requirements for vessel owners
and operators specifically related to vessel operations, notification,
search and rescue procedures, and investigations in the event of death,
injury, serious illness, missing or presumed fallen overboard, or
harassment of an observer. The United States requires U.S. vessel
owners or operators to notify the USCG about marine casualties, which
applies in the event of death, missing or presumed fallen overboard, or
serious injury of an observer. The USCG regulations in 46 CFR part 4
specify requirements for notifications, reporting, and investigations.
Thus, NMFS would not promulgate additional regulations for cases of
death, missing or presumed fallen overboard, or serious injury of an
observer. However, the Resolutions also require that the observer
provider be notified in cases of an observer that dies or goes missing,
and this proposed rule includes requirements for the vessel owner or
operator to notify the observer provider and a government contact.
This rule proposes additional regulations that would govern cases
of serious illness, assault, intimidation, threats, interference, or
harassment of observers. NMFS notes that some of these incidents lead
to civil rather than criminal proceedings and can even involve
circumstances that do not create emergency situations needing a
specific or immediate response from the U.S.
[[Page 4253]]
government. The NMFS West Coast Regional Administrator would post a
list of appropriate contacts for U.S. government offices as well as
observer providers on the NMFS WCR website: https://www.fisheries.noaa.gov/west-coast/partners/emergency-contacts-vessel-owners-operators-and-observers-longline-and-purse. This website
includes emails and phone numbers, which are not referenced here. In
the event that an observer on a fishing vessel of the United States has
been assaulted, intimidated, threatened or harassed, the owner or
operator of the fishing vessel would be required to immediately notify
the observer provider and the NOAA Office of Law Enforcement West Coast
Division Duty Officer line at (206) 526-4851 of the situation and the
status and location of the observer.
The USCG continues to be the point of contact for other emergency
situations that would necessitate an immediate USCG search and rescue,
or law enforcement response. NMFS WCR does not maintain a 24-hour
hotline to handle such emergencies. Thus, in emergency situations that
need an immediate response, vessel owners and operators are encouraged
to contact the nearest U.S. Coast Guard Rescue Coordination Center
(RCC) that can help coordinate with the closest Search and Rescue (SAR)
facility in the area of the vessel: https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Response-Policy-CG-5R/Office-of-Incident-Management-Preparedness-CG-5RI/US-Coast-Guard-Office-of-Search-and-Rescue-CG-SAR/RCC-Numbers/.
In addition, the proposed rule sets forth procedures the vessel
owner or operator would be required to follow in the event that an
observer has a serious illness. The owner or operator of a fishing
vessel of the United States would be required to immediately report
serious illness or injury that threatens the life and/or long-term
health or safety of an observer to the observer provider and a U.S.
government contact.
The rule proposes that, in the event that the observer has a
serious illness or injury that threatens his or her life and/or long-
term health or safety, the owner or operator of the fishing vessel
must: (i) Immediately cease fishing operations; (ii) take all
reasonable actions to care for the observer and provide any medical
treatment available and possible on board the vessel, and where
appropriate seek external medical advice; (iii) where directed by the
observer provider, if not already directed by the appropriate U.S.
government contact, facilitates the disembarkation and transport of the
observer to a medical facility equipped to provide the required care,
as soon as practicable; and (iv) cooperate fully in any official
investigations into the cause of the illness or injury. The Resolution
and proposed regulations specify that the owner or operator of the
fishing vessel must ``immediately cease fishing operations.'' NMFS
anticipates that there may be circumstances where ``immediately cease''
could allow for gear to be retrieved and NMFS does not encourage
abandoning fishing gear.
The proposed rule sets forth procedures the vessel owner or
operator would be required to follow in the event that an observer has
been assaulted, intimidated, threatened or harassed. The rule proposes
that, in the event that an observer on a fishing vessel of the United
States has been assaulted, intimidated, threatened or harassed, the
owner or operator of the fishing vessel must: (i) Immediately take
action to preserve the safety of the observer and mitigate and resolve
the situation on board; (ii) if the observer or the observer provider
indicate that they wish for the observer to be removed from the vessel,
facilitate the safe disembarkation of the observer in a manner and
place, as agreed by the observer provider, that facilitates access to
any needed medical treatment; and (iii) cooperates fully in any
official investigations into the incident.
Classification
After consultation with the Department of State and Department of
Homeland Security, the NMFS Assistant Administrator has determined that
this proposed rule is consistent with the Tuna Conventions Act of 1950,
as amended, the Marine Mammal Protection 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. This proposed rule is not an
Executive Order 13771 regulatory action because this rule is not
significant under Executive Order 12866.
NMFS is amending the supporting statement for the West Coast Region
Pacific Tuna Fisheries Logbook and Fish Aggregating Device Form, Office
of Management and Business (OMB) Paperwork Reduction Act (PRA)
requirements (OMB Control No. 0648-0148) to clarify that the data
collection requirements for FADs are only required for purse seine
vessels without an observer onboard, include requirements to report
incidentally caught silky shark that are surrendered or donated, and
report incidences involving observers on purse seine vessels. NMFS
estimates that the public reporting burden for FAD reporting would be
reduced by five minutes. The requirements to report accidentally caught
silky shark is expected to average one minute per form and the
reporting related to observer safety on purses seine vessels is
estimated to average five minutes per reporting incident. These
estimates include time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
NMFS is also amending the supporting statement for the Pacific
Islands Region Logbook Family of Forms, Office of Management and
Business (OMB) Paperwork Reduction Act (PRA) requirements Control No.
0648-0214. Notifications related to observer safety on longline vessels
are expected to be rare, and are estimated to average five minutes per
reporting incident. Regarding the elements of the rule pertaining to
prohibiting retention of silky sharks on longline vessels; there are no
new collection-of-information requirements associated with this action
that are subject to the PRA, and existing collection-of-information
requirements still apply under the following Control Numbers: 0648-0593
and 0648-0214.
NMFS requests any comments on the PRA package, including whether
the paperwork would unnecessarily burden any vessel owners and
operators. Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to the
ADDRESSES above, and by email to [email protected], or fax to
(202) 395-5806.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a 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. All currently approved NOAA
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
[[Page 4254]]
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.
The United States Small Business Administration (SBA) defines a
``small business'' (or ``small entities'') as one with annual revenue
that meets or is below an established size standard. NMFS has
established that the small business size standard for all businesses
primarily engaged in the commercial fishing industry (NAICS 11411) for
Regulatory Flexibility Act (RFA) compliance purposes (80 FR 81194,
December 29, 2015), is $11 million in annual gross receipts. The
standard is to be used in place of the U.S. SBA 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, respectively, of the U.S. commercial fishing industry.
The action would apply to United States purse seine, longline, and
transshipment vessels registered and authorized to fish for tuna or
tuna-like species in IATTC Convention Area. The IATTC Convention Area
includes the waters bounded by the coast of the Americas, the 50[deg] N
and 50[deg] S parallels, and the 150[deg] W meridian. This area
includes the United States West Coast Exclusive Economic Zone (EEZ).
The entities directly affected by the actions of this proposed action
are: (1) U.S. purse seine vessels that use FADs to fish for tuna or
tuna-like species in the IATTC Convention Area, (2) U.S. purse seine
and longline vessels that catch silky shark, and (3) U.S. purse seine
and longline vessels that carry observers. Per the $11 million size
standard, the FAD components of this rule would affect both large and
small business; the longline vessels that would be affected by the
silky shark component of this rule are small businesses. No U.S.
transshipment vessels would be affected by the proposed regulations,
therefore, impacts to these vessels are not discussed below.
Purse Seine
As of October 2019, there are 17 large, size class six (greater
than or equal to 425 cubic meters) U.S. purse seine vessels registered
to fish in the EPO that are expected to be impacted by this rule; these
vessels always carry observers, potentially fish on FADs, and
incidentally catch silky shark. These vessels have typically been based
in the western and central Pacific Ocean (WCPO). U.S. large purse seine
vessels fishing in the EPO primarily target yellowfin, skipjack, and
bigeye tuna by fishing on floating objects and unassociated sets. They
do not target silky sharks. Additionally, there are 14 small (less than
425 cubic meters) registered U.S. purse seine vessels that are not
subject to the 100 percent observer requirement and currently do not
carry observers, do not fish using FADs, do not target or incidentally
catch silky sharks, and fish primarily in or near coastal zones. As
such, this action does not currently apply to, and is not expected to
impact these smaller vessels.
Estimates of ex-vessel revenues for large U.S. purse seine vessels
fishing in the IATTC Convention Area from 2005 to 2014 have been
confidential and may not be publicly disclosed because of the small
number of vessels in the fishery. However, beginning in 2015, more than
three large purse seine vessels fished either exclusively in the EPO,
or fished in both the EPO and WCPO. Thus, information from 2015 to 2018
is not confidential.
Ex-vessel price information specific to individual large purse
seine 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, Regional Purse Seine Logbook (RPL) data
from the Pacific Islands Fisheries Science Center (PIFSC), and observer
data from the IATTC may be used as a proxy for fish landings by large
U.S. purse seiners, in lieu of cannery receipts. Since neither gross
receipts nor ex-vessel price information specific to individual fishing
vessels are available to NMFS, NMFS applied indicative regional cannery
prices--as approximations of ex-vessel prices--to annual catches of
individual vessels attained from RPLs and IATTC observer data, to
estimate the vessels' annual receipts. Indicative regional cannery
prices are available through 2018 (developed by the Pacific Islands
Forum Fisheries Agency; available at https://www.ffa.int/node/425).
NMFS estimated annual receipts for vessels during 2016 to 2018 for
purse seine vessels that fished in both the EPO and WCPO and those that
fish only the EPO. Using this approach, NMFS estimates that among the
affected vessels, the range in annual average receipts in 2016 to 2018
was $2 million to $15 million with an average of about $9 million.
Thus, NMFS estimates that slightly more than half of the affected large
purse seine vessels are small entities.
Based on limited financial information about the affected fishing
fleets, and using individual vessels as proxies for individual
businesses, NMFS believes that almost 75 percent of the purse seine
fishing entities, are small entities as defined by the RFA; that is,
they are independently owned and operated and not dominant in their
fields of operation, and have annual receipts of no more than $11.0
million. Analysis of the average revenue, by vessel, for the three
years of 2016-2018 (most recent data available) shows that average
annual revenue among vessels in the fleet was about $9.0 million. The
three-year annual averages were less than the $11 million threshold for
28 vessels in the fleet, including 13 of the 16 vessels on both the
IATTC Regional Vessel Register (RVR) and WCPFC Vessel Register.
U.S. vessel owners and operators of purse seine vessels that carry
observers in the EPO, use FADs to fish for tuna or tuna-like species,
and that catch silky shark in the IATTC Convention Area, are all large
purse seine vessels and are both large and small entities. The impacts
of the proposed action are described in detail below.
Proposed Action on Silky Shark
Since 2005, the observer coverage rate on class size six vessels in
the EPO has been 100 percent. The best available data from observers on
large purse seine vessels from 2005 forward, show that the incidental
catches of silky shark are primarily discarded, but that a small
percentage has been landed in the past ten years. For example, in 2015,
about three percent of the total catch of silky sharks caught by U.S.
purse seine vessels in the IATTC Convention Area were landed, and the
rest were discarded either dead or alive. Resolution C-16-06 entered
into force on January 1, 2017, which implemented a prohibition on silky
shark retention. From 2017 to 2018, 0.2 percent of silky sharks that
were caught by U.S. purse seine vessels in the EPO were retained. The
proposed action would allow exemptions for silky shark not seen during
fishing operations and delivered into the vessel hold. In these
situations, the silky shark may be stored on board and landed, but the
vessel owner or operator must surrender the whole silky shark to the
responsible government authority present at the point of landing. If
the governmental authorities are unavailable, the whole silky shark
surrendered must not be sold or bartered but must be donated for
purposes of domestic human
[[Page 4255]]
consumption. The observers or the vessel owner or operator shall report
these incidences to the IATTC. It is not expected that the proposed
changes in retention requirements would substantially change the
vessels' fishing practices, and would impose a minimal reporting time
burden for vessel owners and operators to report these incidences, and
is not expected to reduce profitability.
Proposed Action on Observer Safety
As explained in the preamble of this proposed rule, several
provisions of the emergency action plan included in Resolutions C-18-07
and A-18-03 are already required by the USCG. However, this proposed
action is intended to fill the gaps between the existing USCG marine
casualty requirements at 46 CFR part 4 and these Resolutions. These
gaps consist primarily of how to handle cases of harassment,
intimidation, and serious illness of an observer onboard a purse seine
vessel. Resolution A-18-03 applies to observers on purse seine vessels.
There is 100 percent observer coverage on class size six purse seine
vessels fishing in the IATTC Convention Area, while smaller purse seine
vessels are not subject to the 100 percent observer coverage
requirement and currently are not observed. The proposed action defines
responsibilities for EPO purse seine vessel owners and operators, for
IATTC and AIDCP members to which the fishing vessels are flagged, for
members that have jurisdiction over ports, and for observer providers
in these cases, and would require the vessel owner or operator to
contact identified U.S. government contacts and observer providers.
These safety action and reporting protocols are not expected to incur
negative economic impacts to the affected vessels, fishing practices
are not expected to change, and these emergency situations are expected
to occur infrequently.
Proposed Action on FAD Reporting
Currently, captains of the 17 large purse seiners that use FADs, as
well as onboard observers, collect FAD information, inventory, and
activity data. The proposed action to implement Resolution C-19-01,
will eliminate the duplicative FAD data reporting requirement for purse
seine vessel captains to collect this data, as onboard fishery
observers already collect FAD data. The proposed action is not expected
to have any impact on FAD usage or fishing practices and would decrease
the record-keeping burden for captains in the large purse seine FAD
fishery. No negative economic impacts resulting from the proposed
action are expected to occur.
Longline
As of October 2019, there are 159 U.S. longline vessels registered
on the IATTC RVR and have the option to fish in the IATTC Convention
Area. The majority of these longline vessels possess Hawaii Longline
Limited Access Permits (issued under 50 CFR 665.13). Under the Hawaii
longline limited access program, no more than 164 permits may be
issued. Additionally, there are U.S. longline vessels based on the U.S.
West Coast, some of which operate solely under the Pacific Highly
Migratory Species (HMS) permit. U.S. West Coast-based longline vessels
operating under the Pacific HMS permit fish primarily in the EPO and
are currently restricted to fishing with deep-set longline gear outside
of the U.S. West Coast EEZ. These vessels primarily target tuna species
with a small percentage of swordfish and other highly migratory species
taken incidentally. Since 2008, the observer coverage rates on shallow-
set and deep-set longline vessels in the EPO have been a minimum of 100
and 20 percent, respectively.
There have been less than three West Coast-based vessels operating
under the HMS permit since 2005; therefore, landings and ex-vessel
revenue are confidential. However, the number of Hawaii-permitted
longline vessels that have landed in West Coast ports has increased
from one vessel in 2006 to 22 vessels in 2018. In 2018, 996 mt of
highly migratory species were landed by Hawaii permitted longline
vessels with an average ex-vessel revenue of approximately $255,636 per
vessel, well below the $11 million threshold for finfish harvesting
businesses. NMFS considers all longline vessels, for which data is non-
confidential, that catch silky sharks in the IATTC Convention Area to
be small entities for the purposes of the RFA. The impacts of the
proposed action on these vessels are described in detail below.
Proposed Action on Silky Shark
U.S. longline vessels fishing in the IATTC Convention Area, whether
under the Hawaii Longline Limited Access Permit or the Pacific HMS
permit, do not target silky shark and all those caught incidentally,
are released. From 2008 to 2018, data collected by observers aboard
U.S. Hawaii deep-set longline vessels fishing in the IATTC Convention
Area, showed a total of 65 silky sharks were caught; 72 percent of
which were released alive, and the remaining 28 percent were discarded.
During the same period, observers did not record any catch of silky
shark on longline vessels using shallow-set gear. The proposed action
would implement a full prohibition on the retention of silky shark on
these vessels. It is not expected that the proposed changes would have
a substantial impact on the vessels' fishing practices, due to the
vessels already not having any intentional or unintentional retention
of silky shark in the EPO. The proposed action is not expected to
reduce profitability, thus, compliance with this measure is not
expected to incur negative economic impacts to affected EPO U.S.
longline vessels.
Proposed Action on Observer Safety
Resolution C-18-07 applies to observers in longline and
transshipment observer programs required by the IATTC. The proposed
action defines responsibilities for EPO longline vessel owners and
operators, for IATTC and AIDCP Members to which the fishing vessels are
flagged, for Members that have jurisdiction over ports, and for
observer providers in these cases. These safety action and reporting
protocols are not expected to incur negative economic impacts to the
affected vessels, fishing practices are not expected to change, and
issues that arise where the protocols are applicable occur
infrequently.
Conclusion
In summary, the proposed action is not expected to substantially
change the typical fishing practices of affected vessels, and any
impact to the profitability of U.S. vessels is expected to be minor.
NMFS has determined that the action is not expected to have a
significant economic impact on a substantial number of small entities.
The action is also not expected to have a disproportional economic
impact on small business entities relative to the large entities. As a
result, an initial regulatory flexibility analysis is not required and
none has been prepared.
List of Subjects in 50 CFR Parts 216 and 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: January 14, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 216 and 300
are proposed to be amended as follows:
[[Page 4256]]
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Revise Sec. 216.24, all references to ``Southwest Region'' to read
``West Coast Region'' and add paragraph (e)(4)(i) to read as follows:
Sec. 216.24 Taking and related acts in commercial fishing operations
including tuna purse seine vessels in the eastern tropical Pacific
Ocean.
* * * * *
(e) * * *
(4) * * *
(ii) Requirements for owners and operators of U.S. purse seine
vessels for reporting and actions in response to observer safety are at
50 CFR 300.29.
(ii) [Reserved]
* * * * *
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart C--Eastern Pacific Tuna Fisheries
0
3. The authority citation for part 300, subpart C, continues to read as
follows:
Authority: 16 U.S.C. 951 et seq.
0
4. In Sec. 300.22, revise paragraph (a)(3)(i) to read as follows:
Sec. 300.22 Recordkeeping and reporting requirements.
(a) * * *
(3) * * *
(i) Reporting on FAD interactions: U.S. purse seine vessel
operators shall provide the observer with the FAD identification code
and, as appropriate, the other information in the FAD interaction
standard format provided by the HMS Branch. U.S. vessel owners and
operators, without an observer onboard, must ensure that any
interaction or activity with a FAD is reported using a FAD interaction
standard format provided by the HMS Branch. The owner and operator
shall ensure that the form is submitted within 30 days of each landing
or transshipment of tuna or tuna-like species to the address specified
by the HMS Branch.
* * * * *
0
5. In Sec. 300.24, revise paragraphs (ff) through (hh) to read as
follows:
Sec. 300.24 Prohibitions.
* * * * *
(ff) Fail to provide information to an observer or record or report
data on FADs as required in Sec. 300.22(a)(3).
(gg) Use a commercial purse seine or longline fishing vessel of the
United States to retain on board, transship, store, or land any part or
whole carcass of a silky shark (Carcharhinus falciformis) in
contravention of Sec. 300.27(e).
(hh) Fail to follow observer safety requirements as specified under
Sec. 300.29.
* * * * *
0
6. In Sec. 300.27, revise paragraphs (e) and (f) to read as follows:
Sec. 300.27 Incidental catch and tuna retention requirements.
* * * * *
(e) Silky shark restrictions for purse seine vessels. The crew,
operator, and owner of a commercial purse seine or longline fishing
vessel of the United States used to fish for tuna or tuna-like species
is prohibited from retaining on board, transshipping, storing, or
landing any part or whole carcass of a silky shark (Carcharhinus
falciformis) that is caught in the IATTC Convention Area, except as
provided in paragraph (f) of this section.
(f) Exception for silky shark unintentionally caught and frozen: In
the case of a purse seine vessel operating in the IATTC Convention Area
that catches a silky shark that is not seen during fishing operations
and is delivered into the vessel hold, the silky shark may be stored on
board and landed, but the vessel owner or operator must surrender the
whole silky shark to the responsible government authority present at
the point of landing. In U.S. ports the responsible governmental
authority is the NOAA Office of Law Enforcement divisional office
nearest to the port, or other authorized personnel. If no governmental
authorities are available, the whole silky shark surrendered must not
be sold or bartered but must be donated for purposes of domestic human
consumption consistent with relevant laws and policies. The vessel
owner or operator shall report these incidences to the IATTC
Secretariat by recording them in the IATTC Regional Purse Seine
Logbook, or another form identified by NMFS.
* * * * *
0
7. Add Sec. 300.29 to read as follows:
Sec. 300.29 Observers.
Observer Safety. The following requirements apply to all on-board
fisheries observers required under this subpart, which includes
observers on purse seine, longline vessels, and transshipment carrier
vessels, and while on a fishing trip in the IATTC Convention Area.
(a) Contact information. A full list of U.S. longline and IATTC
purse seine observer providers and U.S. government contacts for
situations described below is available at the following website:
https://www.fisheries.noaa.gov/west-coast/partners/emergency-contacts-vessel-owners-operators-and-observers-longline-and-purse.
(b) Loss of life. In the event that an observer dies, is missing or
presumed fallen overboard, the fishing vessel must immediately notify a
U.S. government contact and the observer provider.
(c) Serious illness or injury. The owner or operator of a fishing
vessel of the United States shall immediately report serious illness or
injury that threatens the life and/or long-term health or safety of an
observer to the observer provider and a U.S. government contact. In
addition, the fishing vessel must:
(1) Immediately cease fishing operations;
(2) Take all reasonable actions to care for the observer and
provide any medical treatment available and possible on board the
vessel, and where appropriate seek external medical advice;
(3) Where directed by the observer provider, if not already
directed by the appropriate U.S. government contact, facilitates the
disembarkation and transport of the observer to a medical facility
equipped to provide the required care, as soon as practicable; and
(4) Cooperate fully in any official investigations into the cause
of the illness or injury.
(d) Assault, intimidation, threat, or harassment. For reporting
violations in the event that an observer on a fishing vessel of the
United States has been assaulted, intimidated, threatened or harassed,
the owner or operator of the fishing vessel shall immediately notify
the observer provider and the NOAA Office of Law Enforcement West Coast
Division Duty Officer line at (206) 526-4851 of the situation and the
status and location of the observer. In addition, the fishing vessels
must:
(1) Immediately take action to preserve the safety of the observer
and mitigate and resolve the situation on board;
(2) If the observer or the observer provider indicate that they
wish for the observer to be removed from the vessel, facilitate the
safe disembarkation of the observer in a manner and place, as agreed by
the observer provider and a U.S. government contact, that facilitates
access to any needed medical treatment; and
[[Page 4257]]
(3) Cooperates fully in any official investigations into the
incident.
[FR Doc. 2020-00880 Filed 1-23-20; 8:45 am]
BILLING CODE 3510-22-P