[Federal Register Volume 79, Number 110 (Monday, June 9, 2014)]
[Proposed Rules]
[Pages 32903-32906]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13267]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 130722645-4453-01]
RIN 0648-BD53


International Fisheries; Pacific Tuna Fisheries; Fishing 
Restrictions in the Eastern Pacific Ocean, Whale Shark Conservation 
Measures

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 under the Tuna Conventions Act to implement a 
resolution of the Inter-American Tropical Tuna Commission (IATTC) 
intended to conserve whale sharks (Rhincodon typhus) in the Eastern 
Pacific Ocean (EPO). This proposed rule, if adopted, would prohibit 
setting a purse seine net on a whale shark, and would require certain 
measures to protect whale sharks in the event that a whale shark is 
encircled in a purse seine net. This proposed rulemaking is necessary 
for the United States to satisfy its obligations as a member of the 
IATTC.

DATES: Comments must be submitted in writing by June 30, 2014. A public 
hearing will be held from 1 p.m. to 4 p.m. PST, June 11, 2014 in Long 
Beach, CA.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2013-0118, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/

[[Page 32904]]

!docketDetail;D=NOAA-NMFS-2013-0118, click the ``Comment 
Now!'' icon, complete the required fields, and enter or attach your 
comments.
     Mail: Attn: Chris Fanning, NMFS West Coast Region, 501 W. 
Ocean Blvd., Suite 4200, Long Beach, CA 90802. Include the identifier 
``NOAA-NMFS-2013-0118'' in the comments.
     Public hearing: The public is welcome to attend a public 
hearing and offer comments on this proposed rule from 1 p.m. to 4 p.m. 
PST, June 11, 2014 at 501 W. Ocean Boulevard, Suite 4200, Long Beach, 
CA 90802. The public may also participate in the public hearing via 
conference line: 1-888-790-6181, passcode 14789.
    Instructions: 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 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, address, etc.), 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. 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 Chris Fanning, NMFS West Coast Region (see ADDRESSES 
above) and by email to OIRA_Submission@omb.eop.gov. Copies of the 
draft Regulatory Impact Review (RIR) and other supporting documents are 
available via the Federal e-Rulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2013-0118 or contact with the 
Regional Administrator, William W. Stelle, Jr., NMFS West Coast 
Regional Office, 7600 Sand Point Way NE., Bldg 1, Seattle, WA 98115-
0070, or RegionalAdministrator.WCRHMS@noaa.gov.

FOR FURTHER INFORMATION CONTACT: Chris Fanning, NMFS, 562-980-4198 or 
Heidi Taylor NMFS, 562-980-4039.

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. The full text of the 1949 Convention is 
available at: http://www.iattc.org/PDFFiles/IATTC_convention_1949.pdf. The IATTC facilitates scientific research into, as well as 
conservation and management of, highly migratory species in the IATTC 
Convention Area (defined as the waters of the EPO). Since 1998, 
conservation resolutions adopted by the IATTC have further defined the 
Convention Area as the area bounded by the coast of the Americas, the 
50[deg] N. and 50[deg] S. parallels, and the 150[deg] W. meridian. The 
IATTC has maintained a scientific research and fishery monitoring 
program for many years, and regularly assesses the status of tuna and 
billfish stocks in the EPO to determine appropriate catch limits and 
other measures deemed necessary to prevent overexploitation of these 
stocks and to promote sustainable fisheries. Current IATTC member 
countries include: Belize, Canada, China, Chinese Taipei (Taiwan), 
Colombia, Costa Rica, Ecuador, El Salvador, the European Union, France, 
Guatemala, Japan, Kiribati, the Republic of Korea, Mexico, Nicaragua, 
Panama, Peru, the United States, Vanuatu, and Venezuela. Bolivia, 
Honduras, Indonesia and the Cook Islands are cooperating non-members.

International Obligations of the United States Under the Convention

    As a Contracting Party to the 1949 Convention and a member of the 
IATTC, the United States is legally bound to implement resolutions 
adopted by the IATTC. The Tuna Conventions Act (16 U.S.C. 951-962) 
directs the Secretary of Commerce, after approval by the Secretary of 
State, to promulgate such regulations as may be necessary to implement 
resolutions adopted by the IATTC. The Secretary's authority to 
promulgate such regulations has been delegated to NMFS.

IATTC Conservation Decisions in 2013

    At its 85th Meeting, in June 2013, the IATTC adopted by consensus 
the Resolution on Collection and Analysis of Data on Fish-Aggregating 
Devices (FADs) (Resolution C-13-04). (Active resolutions of the IATTC 
are available at: http://www.iattc.org/ResolutionsActiveENG.htm.) Three 
measures in Section 4 of Resolution C-13-04 address the potential 
impacts of purse seine fishing operations on the sustainability of the 
whale shark. The first provision directs countries to prohibit setting 
any purse seine on a school of tuna associated with a live whale shark 
if the animal is sighted prior to the commencement of the set. In the 
event that a whale shark is encircled by a purse seine net, the second 
and third provisions of Resolution C-13-04 direct countries to require 
that purse seine vessel operators ensure all reasonable steps are taken 
to ensure the safe release of the shark, and report the incident to the 
relevant governmental authority, including the number of individual 
whale sharks, 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). As per section 4, 
paragraph 16 of Resolution C-13-04, the whale shark provisions ``shall 
enter into effect on July 1, 2014''. This effective date is necessary 
for the United States to fully satisfy its obligations as a member of 
the IATTC. The remaining provisions of Resolution C-13-04 pertaining to 
Fish Aggregating Devices (FADs) data collection and identification will 
be addressed in a later rulemaking.

Proposed Action

    This proposed rule, if adopted, would implement Resolution C-13-04 
which includes conservation measures for whale sharks. The regulations 
would apply to owners and operators of U.S. purse seine vessels while 
fishing commercially for tuna in the Convention Area. The Department of 
State has approved implementation of Resolution C-13-04 by this 
rulemaking.

Classification

    The NMFS Assistant Administrator has 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.
    Pursuant to the Regulatory Flexibility Act (RFA), 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 as follows:
    It is extremely unlikely that this rulemaking will result in a 
significant change in fishing operations. According to observer data 
report summaries from the previous 10 years supplied by the IATTC, U.S. 
large (greater than 363 metric tons, or 400 short tons, in carrying 
capacity) purse seine vessels

[[Page 32905]]

with 100 percent observer coverage in the EPO have had two interactions 
with whale sharks: Once each in 2006 and 2009. In both instances, the 
encirclement of the whale shark was incidental to a fish aggregating 
device (FAD) directed set, and the whale shark was released and 
presumed unharmed. No data exists for purse seine vessels smaller than 
400 short tons carrying capacity having interactions with whale sharks. 
Given the rare occurrence of observed U.S. purse seine vessel 
incidental interactions with whale sharks in the EPO, and given whale 
sharks are not a target species of the tuna purse seine fishery and 
have no commercial value to tuna canneries, the proposed action is not 
expected to affect or change current operating procedures or result in 
a reduction in associated revenues.
    On June 20, 2013, the U.S. Small Business Administration (SBA) 
issued a final rule revising the small business size standards for 
several industries effective July 22, 2013 (78 FR 37398). The rule 
increased the size standard for finfish fishing from $4.0 million to 
$19.0 million, shellfish fishing from $4.0 million to $5.0 million, and 
other marine fishing from $4.0 million to $7.0 million. NMFS conducted 
its analysis for this action using the new size standards.
    Estimates of ex-vessel revenues in the U.S. purse seine fishery in 
the IATTC Convention Area since 2005, which would be indicative of 
current conditions, are confidential and may not be publicly disclosed 
because of the small number of vessels in the fishery. Since 2004, only 
two U.S. purse seine vessels in class sizes 1 to 6 have made landings 
each year on average. Only two U.S. purse seine vessels landed fish in 
this fishery from 2005 through 2008, thus the landings and revenue data 
from these years are confidential and may not be released. Based on 
historic and recent U.S. purse seine vessels listed on the IATTC Active 
Purse Seine Vessel Register, there are four class size 6 vessels and no 
class size 5 and 4 vessels likely to be affected by the rule in the 
near future. Two vessels transited through the IATTC Convention Area in 
2010 but did not fish. Only three and two class size 6 vessels fished 
for tunas in IATTC Convention Area in 2011 and 2012, respectively. In 
2013 there were 10 vessels registered to operate in the IATTC 
Convention Area, including the smaller purse seine vessels that 
typically fish for coastal pelagic species (e.g., sardines). The 
average annual per vessel revenue in 2013 for the registered vessels 
operating in the IATTC Convention Area has been below $19 million; 
therefore, all of these vessels are considered small businesses under 
the RFA. Because each affected vessel is a small business, this 
proposed rule has an equal effect on all of these small entities, and 
therefore will impact a substantial number of these small entities in 
the same manner. Based on the analysis above, the proposed action, if 
adopted, will not have adverse or disproportional economic impact on 
these small business entities. Because the proposed action would not 
have a significant impact on a substantial number of small entities, an 
Initial Regulatory Flexibility Analysis is not required and none has 
been prepared. NMFS solicits public comment on the analyses in light of 
the new size standards.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA), which has been approved 
by the Office of Management and Budget (OMB) under control number 0648-
0387. Public reporting burden for whale shark interaction reporting is 
estimated to average ten minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by 
email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
    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.

List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Fish, Fisheries, Fishing, 
Marine resources, Reporting and record keeping requirements, Treaties.

    Dated: June 3, 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, subpart C 
is proposed to be amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart C--Eastern Pacific Tuna Fisheries

0
1. The authority citation for 50 CFR part 300, subpart C, continues to 
read as follows:

    Authority: 16 U.S.C. 951-961 et seq.
0
2. In Sec.  300.22, paragraph (a) is redesignated as paragraph (a)(1), 
and paragraph (a) heading and paragraph (a)(2) are added as follows:


Sec.  300.22  Eastern Pacific fisheries recordkeeping and written 
reports.

    (a) Logbooks.
     * * *
    (2) Whale shark encirclement reporting. The owner and operator of a 
purse seine fishing vessel of the United States that encircles a whale 
shark (Rhincodon typus) while fishing commercially in the Convention 
Area must ensure that the incident is recorded in the comment section 
of the Log that is required by this paragraph (a). The Log must 
describe, among other things: The number of individual whale sharks 
with which the vessel interacted, 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 upon 
release (including whether the animal was released alive, but 
subsequently died).
* * * * *
0
3. In Sec.  300.24, paragraphs (v), (w), and (x) are added to read as 
follows:


Sec.  300.24  Prohibitions.

* * * * *
    (v) Fail to maintain, submit, or ensure submission of a Log that 
includes all the information required in Sec.  300.22(a).
    (w) Set or attempt to set a purse seine on or around a whale shark 
(Rhincodon typus) in contravention of Sec.  300.25(e)(5).
    (x) Fail to release a whale shark encircled in a purse seine net of 
a fishing vessel as required in Sec.  300.25(e)(6)
0
4. In Sec.  300.25, paragraphs (e)(5) and (e)(6) are added to read as 
follows:


Sec.  300.25  Eastern Pacific fisheries management.

* * * * *
    (e) * * *
    (5) Owners, operators, and crew of fishing vessels of the United 
States fishing commercially for tuna in the Convention Area may not set 
or attempt to set a purse seine on or around a whale shark (Rhincodon 
typus) if the animal is sighted prior to the commencement of the set or 
the attempted set.

[[Page 32906]]

    (6) The crew, operator, and owner of a fishing vessel of the United 
States fishing commercially 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.
* * * * *
[FR Doc. 2014-13267 Filed 6-6-14; 8:45 am]
BILLING CODE 3510-22-P