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Federal Register / Vol. 79, No. 163 / Friday, August 22, 2014 / Proposed Rules 49745

• Is not a significant regulatory action DEPARTMENT OF COMMERCE NOAA–NMFS–2014–0086, and the subject to Executive Order 13211 (66 FR regulatory impact review (RIR) prepared 28355, May 22, 2001); National Oceanic and Atmospheric for this proposed rule, by either of the Administration • Is not subject to requirements of following methods: • Electronic Submission: Submit all Section 12(d) of the National 50 CFR Part 300 electronic public comments via the Technology Transfer and Advancement Federal e-Rulemaking Portal. Go to Act of 1995 (15 U.S.C. 272 note) because [Docket No. 130703588–4658–01] www.regulations.gov/ application of those requirements would RIN 0648–BD44 #!docketDetail;D=NOAA-NMFS-2014- be inconsistent with the CAA; and 0086, click the ‘‘Comment Now!’’ icon, • Does not provide EPA with the International Fisheries; Western and complete the required fields, and enter discretionary authority to address, as Central Pacific Fisheries for Highly or attach your comments. Migratory ; Fishing appropriate, disproportionate human • Mail: Submit written comments to Restrictions regarding the Oceanic health or environmental effects, using Michael D. Tosatto, Regional Whitetip , the Whale Shark, and practicable and legally permissible Administrator, Pacific Islands Regional the Silky Shark methods, under Executive Order 12898 Office, NOAA Inouye Regional Center, (59 FR 7629, February 16, 1994). AGENCY: National Marine Fisheries 1845 Wasp Blvd., Building 176, Honolulu, HI 96818. In addition, this proposed action for Service (NMFS), National Oceanic and Instructions: Comments sent by any the state of South Carolina does not Atmospheric Administration (NOAA), Commerce. other method, to any other address or have Tribal implications as specified by individual, or received after the end of Executive Order 13175 (65 FR 67249, ACTION: Proposed rule; request for comments. the comment period, might not be November 9, 2000). The Catawba Indian considered by NMFS. All comments Nation Reservation is located within the SUMMARY: NMFS proposes regulations received are a part of the public record State of South Carolina. Pursuant to the under authority of the Western and and will generally be posted for public Catawba Indian Claims Settlement Act, Central Pacific Fisheries Convention viewing on www.regulations.gov S.C. Code Ann. 27–16–120, ‘‘all state Implementation Act (WCPFC without change. All personal identifying and local environmental laws and Implementation Act) to implement information (e.g., name and address), regulations apply to the [Catawba Indian decisions of the Commission for the confidential business information, or Nation] and Reservation and are fully Conservation and Management of otherwise sensitive information enforceable by all relevant state and Highly Migratory Stocks in the submitted voluntarily by the sender will local agencies and authorities.’’ Western and Central Pacific Ocean be publicly accessible. NMFS will However, EPA has determined that (Commission or WCPFC) on fishing accept anonymous comments (enter because this proposed rule does not restrictions related to the oceanic ‘‘N/A’’ in the required fields if you wish have substantial direct effects on an whitetip shark (Carcharhinus to remain anonymous). Attachments to Indian Tribe because, as noted above, longimanus), the whale shark electronic comments will be accepted in this action is not approving any specific (Rhincodon typus), and the silky shark Microsoft Word, Excel, or Adobe PDF rule, but rather proposing that South (Carcharhinus falciformis). The file formats only. Carolina’s already approved SIP meets regulations would apply to owners and An initial regulatory flexibility certain CAA requirements. EPA notes operators of U.S. fishing vessels used for analysis (IRFA) prepared under commercial fishing for highly migratory today’s action will not impose authority of the Regulatory Flexibility species (HMS) in the area of application Act is included in the Classification substantial direct costs on Tribal of the Convention on the Conservation section of the SUPPLEMENTARY governments or preempt Tribal law. and Management of Highly Migratory INFORMATION section of this proposed List of Subjects in 40 CFR Part 52 Fish Stocks in the Western and Central rule. Pacific Ocean (Convention). The Copies of the RIR and the Environmental protection, Air regulations for oceanic whitetip Environmental Assessment (EA) are pollution control, Incorporation by and silky sharks would prohibit the available at www.regulations.gov or may reference, Intergovernmental relations, retention, transshipment, storage, or be obtained from Michael D. Tosatto, Nitrogen dioxide, Ozone, Reporting and landing of oceanic whitetip sharks or NMFS PIRO (see address above). recordkeeping requirements, Volatile silky sharks and would require the Written comments regarding the organic compounds. release of any or burden-hour estimates or other aspects Authority: 42 U.S.C. 7401 et seq. silky shark as soon as possible after it of the collection-of-information is caught, with as little harm to the requirements contained in this proposed Dated: August 11, 2014. shark as possible. The regulations for rule may be submitted to Michael D. Heather McTeer Toney, whale sharks would prohibit setting a Tosatto, Regional Administrator, NMFS Regional Administrator, Region 4. purse seine on a whale shark and would PIRO (see address above) and by email _ [FR Doc. 2014–20039 Filed 8–21–14; 8:45 am] specify certain measures to be taken and to OIRA [email protected] or reporting requirements in the event a fax to 202–395–7285. BILLING CODE 6560–50–P whale shark is encircled in a purse seine FOR FURTHER INFORMATION CONTACT: Rini net. This action is necessary for the Ghosh, NMFS PIRO, 808–725–5033. United States to satisfy its obligations SUPPLEMENTARY INFORMATION: under the Convention, to which it is a Contracting Party. Background on the Convention DATES: Comments must be submitted in A map showing the boundaries of the writing by October 6, 2014. area of application of the Convention ADDRESSES: You may submit comments (Convention Area), which comprises the on this proposed rule, identified by majority of the western and central

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Pacific Ocean (WCPO), can be found on by the Convention. The second EEZs of the PNA, but would implement the WCPFC Web site at: www.wcpfc.int/ provision requires CCMs to require their the prohibition in all other EEZs and on doc/convention-area-map. The vessels to release any oceanic whitetip the high seas in the Convention Area, as Convention focuses on the conservation shark that is caught as soon as possible detailed in the section below titled and management of highly migratory after the shark is brought alongside the ‘‘Proposed Action.’’ species (HMS) and the management of vessel, and to do so in a manner that The second and third provisions of fisheries for HMS. The objective of the results in as little harm to the shark as CMM 2012–04 require CCMs to require Convention is to ensure, through possible. CMM 2011–04 also includes a that operators of their vessels take effective management, the long-term provision that acts as a limited certain measures in the event that a conservation and sustainable use of exemption from the other provisions by whale shark is encircled in a purse seine HMS in the WCPO. To accomplish this allowing observers to collect samples net: the operator shall ensure that objective, the Convention establishes from oceanic whitetip sharks that are reasonable steps are taken to ensure the the Commission for the Conservation dead on haulback, provided that the safe release of the shark; and report the and Management of Highly Migratory collection is part of a research project incident to the relevant authority of the Fish Stocks in the Western and Central approved by the WCPFC Scientific flag State, including the number of Pacific Ocean (WCPFC). The WCPFC Committee. The proposed rule would individuals, details of how and why the includes Members, Cooperating Non- implement all of these provisions for encirclement happened, where it members, and Participating Territories U.S. fishing vessels, as detailed in the occurred, steps taken to ensure safe (collectively, CCMs). The United States section below titled ‘‘Proposed Action.’’ release, and an assessment of the life is a Member. American Samoa, Guam, status of the whale shark on release WCPFC Decision on the Whale Shark and the Commonwealth of the Northern (including whether the was Mariana Islands (CNMI) are The WCPFC adopted ‘‘Conservation released alive, but subsequently died). Participating Territories. and Management Measure for Protection These two provisions are applicable to As a Contracting Party to the of Whale Sharks from Purse Seine the high seas and all EEZs in the Convention and a Member of the Fishing Operations’’ (CMM 2012–04) in Convention Area, including the EEZs of WCPFC, the United States is obligated response to concerns about the potential the PNA. The proposed rule to implement the decisions of the impacts of purse seine fishing incorporates these two provisions, as WCPFC. The WCPFC Implementation operations on the sustainability of the detailed in the section below titled Act (16 U.S.C. 6901 et seq.), authorizes whale shark. Paragraph 1 of CMM 2012– ‘‘Proposed Action.’’ the Secretary of Commerce, in 04 specifies that the measure applies The final provision of CMM 2012–04 consultation with the Secretary of State only to the high seas and exclusive for CCMs to apply to their vessels is for and the Secretary of the Department in economic zones (EEZs) in the area of CCMs to require their vessels to follow which the United States Coast Guard is application of the Convention any guidelines adopted by the WCPFC operating (currently the Department of (Convention Area) (i.e., not to territorial for the safe release of whale sharks. The Homeland Security), to promulgate such seas or archipelagic waters). CMM proposed rule would not implement this regulations as may be necessary to carry 2012–04 includes four specific provision because the WCPFC has not out the obligations of the United States provisions for CCMs to implement for yet adopted guidelines for the safe under the Convention, including the their vessels. The first provision release of whale sharks. decisions of the WCPFC. The WCPFC requires CCMs to prohibit their flagged CMM 2012–04 also specifies the Implementation Act further provides vessels from setting a purse seine on a importance of maintaining the safety of that the Secretary of Commerce shall school of tuna associated with a whale the crew during the implementation of ensure consistency, to the extent shark if the animal is sighted prior to the provisions in the CMM, and this practicable, of fishery management the commencement of the set. The concept has been included in the programs administered under the measure specifies that in the EEZs of proposed rule. Parties to the Nauru Agreement (PNA), WCPFC Implementation Act and the WCPFC Decision on the Silky Shark Magnuson-Stevens Fishery the prohibition shall be implemented in Conservation and Management Act accordance with the ‘‘Third The WCPFC adopted ‘‘Conservation (MSA; 16 U.S.C. 1801 et seq.), as well Arrangement Implementing the Nauru and Management Measure for Silky as other specific laws (see 16 U.S.C. Agreement Setting Forth Additional Sharks’’ (CMM 2013–08) in response to 6905(b)). The Secretary of Commerce Terms and Conditions of Access to the the results of the recent WCPFC stock has delegated the authority to Fisheries Zones of the Parties,’’ as assessment, showing that the species is promulgate regulations under the amended on September 11, 2010 (Third overfished and that overfishing is WCPFC Implementation Act to NMFS. Arrangement). The Third Arrangement occurring. The provisions of CMM states that no purse seine vessel shall 2013–08 are similar to the provisions of WCPFC Decision on the Oceanic engage in fishing or related activity in CMM 2011–04. One provision requires Whitetip Shark order to catch tuna associated with CCMs to prohibit their vessels from The WCPFC adopted ‘‘Conservation whale sharks and that the provisions of retaining on board, transshipping, and Management Measure for Oceanic the Third Arrangement shall be storing on board, or landing any silky Whitetip Shark’’ (CMM 2011–04) to implemented in accordance with a shark, in whole or in part, in the address recent declines in catch rates program adopted by the Parties. The fisheries covered by the Convention. and size of oceanic whitetip sharks in United States is not a party to the Nauru Another provision requires CCMs to the longline and purse seine fisheries. Agreement and has no role in require their vessels to release any silky CMM 2011–04 includes two provisions implementing it or the Third shark that is caught as soon as possible for CCMs to apply to their vessels. The Arrangement. It is expected that the after the shark is brought alongside the first provision requires CCMs to prohibit PNA will implement this provision of vessel, and to do so in a manner that their vessels from retaining on board, the CMM in their EEZs in accordance results in as little harm to the shark as transshipping, storing on board, or with the Third Arrangement. possible. CMM 2013–08 also includes a landing any oceanic whitetip shark, in Accordingly, this proposed rule would provision that acts as a limited whole or in part, in the fisheries covered not implement the prohibition in the exemption from the other provisions by

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allowing observers to collect samples has not, within a reasonable period of net in the Convention Area, and must from silky sharks that are dead on time after the promulgation of take reasonable steps are taken to ensure haulback, provided that the collection is regulations, enacted laws or its safe release, without compromising part of a research project approved by promulgated regulations that implement the safety of any persons. This element the WCPFC Scientific Committee. The the recommendations of the WCPFC also would not apply in the territorial proposed rule would implement all of within the boundaries of the State; or seas or archipelagic waters of any these provisions for U.S. fishing vessels, has enacted laws or promulgated nation, but would apply in the EEZs of as detailed in the section below titled regulations that implement the the PNA. ‘‘Proposed Action.’’ recommendations of the WCPFC that are The third and final element for the less restrictive than the regulations whale shark in the proposed rule would Proposed Action promulgated under the WCPFC require the owner and operator of a This proposed rule would implement Implementation Act or are not fishing vessel that encircles a whale the provisions of CMM 2011–04, CMM effectively enforced (16 U.S.C. 6907(e)). shark with a purse seine in the 2012–04, and CMM 2013–08, described NMFS will furnish copies of the Convention Area to ensure that the above, for U.S. fishing vessels used for proposed rule to American Samoa, incident is recorded by the end of the commercial fishing for HMS in the Guam, Hawaii, and the Commonwealth day on the catch report form, or Convention Area. The proposed rule of the Northern Mariana Islands at the Regional Purse Seine Logsheet (RPL), includes six elements—three elements time of publication in the Federal maintained pursuant to § 300.34(c)(1), regarding the oceanic whitetip shark Register and will be available to discuss in the format specified by the Pacific and silky shark and three elements ways to ensure that the conservation Islands Regional Administrator. The regarding the whale shark. For the and management measures Pacific Islands Regional Administrator oceanic whitetip shark and silky shark, implemented in this rulemaking can be would provide vessel owners and the first element would prohibit the consistently applied to federal, state, operators with specific instructions for crew, operator, and owner of a fishing and territorial managed fisheries. how to record whale shark vessel of the United States used for For the whale shark, the first element encirclements on the RPL. commercial fishing for HMS from of the proposed rule would prohibit retaining on board, transshipping, owners, operators, and crew of fishing Classification storing, or landing any part or whole vessels from setting or attempting to set The Administrator, Pacific Islands carcass of an oceanic whitetip shark or a purse seine in the Convention Area on Region, NMFS, has determined that this silky shark that is caught in the or around a whale shark if the animal proposed rule is consistent with the Convention Area. The second element is sighted prior to the commencement of WCPFC Implementation Act and other would require the crew, operator, and the set or the attempted set. CMM 2012– applicable laws, subject to further owner to release any oceanic whitetip 04 includes language making the consideration after public comment. shark or silky shark caught in the prohibition specific to ‘‘a school of tuna Convention Area as soon as possible associated with a whale shark.’’ Executive Order 12866 after the shark is caught and brought However, it is unclear exactly what this This proposed rule has been alongside the vessel and take reasonable phrase means. Thus, NMFS believes it determined to be not significant for steps for its safe release, without is appropriate to apply this prohibition purposes of Executive Order 12866. compromising the safety of any persons. to any purse seine set or attempted set Regulatory Flexibility Act The third element takes into on or around a whale shark that has consideration that, notwithstanding the been sighted prior to commencement of An in initial regulatory flexibility other two oceanic whitetip and silky the set or attempted set. This analysis (IRFA) was prepared, as shark elements of the rule, WCPFC prohibition would not apply to sets required by section 603 of the observers may collect samples of made in the territorial seas or Regulatory Flexibility Act. The IRFA oceanic whitetip sharks or silky sharks archipelagic waters of any nation or in describes the economic impact this that are dead when brought alongside the EEZs of the PNA. The proposed rule proposed rule would have on small the vessel and may require the crew, would also include a definition of the entities, if adopted. A description of the operator, or owner of the vessel to allow PNA as the Pacific Island countries that action, why it is being considered, and or assist them to collect samples in the are parties to the Nauru Agreement the legal basis for this action are Convention Area. Observers deployed Concerning Cooperation in the contained in the SUMMARY section of the by NMFS or the Forum Fisheries Management of Fisheries of Common preamble and in other sections of this Agency are currently considered Interest, as specified on the Web site of SUPPLEMENTARY INFORMATION section of WCPFC observers, as those programs the Parties to the Nauru Agreement at the preamble. The analysis follows: have completed the required www.pnatuna.com. The PNA currently Estimated Number of Small Entities authorization process to become part of includes the following countries: Affected the WCPFC Regional Observer Federated States of Micronesia, Kiribati, Programme. Marshall Islands, Nauru, Palau, Papua The proposed rule would apply to The WCPFC Implementation Act New Guinea, Solomon Islands, and owners and operators of U.S. fishing states that regulations promulgated Tuvalu. Vessel owners and operators vessels used to fish for HMS for under the act shall apply within the may be subject to similar prohibitions commercial purposes in the Convention boundaries of any of the States of the regarding the whale shark in the EEZs Area. This includes vessels in the purse United States and any commonwealth, of the PNA, if implemented by the PNA seine, longline, tropical troll (including territory or possession of the United in accordance with the Third those in American Samoa, the States (hereafter ‘‘State’’) bordering on Arrangement. Commonwealth of the Northern Mariana the Convention Area if the Secretary of The second element for the whale Islands, Guam, and Hawaii), Hawaii Commerce has provided notice to the shark in the proposed rule would handline, Hawaii pole-and-line, and State, the State does not request an require the crew, operator, and owner of west coast-based albacore troll fleets. agency hearing, and the Secretary of a fishing vessel to release any whale The estimated number of affected Commerce has determined that the State shark that is encircled in a purse seine fishing vessels is as follows, broken

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down by fleet: 40 purse seine vessels estimated average annual receipts for retained sharks are not known). (based on the number of purse seine each of the 40 vessels were less than Expected retained amounts of each of vessels licensed under the South Pacific $20.5 million. the two species in each fishery (under Tuna Treaty as of March 2014); 165 no action) are based on the recent level Recordkeeping, Reporting, and Other of fishing effort multiplied by the recent longline vessels (based on the number of Compliance Requirements longline vessels permitted to fish as of retention rate per unit of fishing effort. July 2014 under the Fishery Ecosystem The reporting, recordkeeping and For all fisheries except the purse seine Plan for Pacific Pelagic Fisheries of the other compliance requirements of this fishery, the average of the last five years Western Pacific Region, which includes proposed rule are described earlier in for which complete data are available, vessels based in Hawaii (a total of 164 the preamble. The classes of small 2008–2012, is used. The analysis of Hawaii Longline Limited Entry permits entities subject to the requirements and impacts for the purse seine fishery uses are available), American Samoa (a total the costs of complying with the fishing effort and the retention rate of 60 American Samoa Longline Limited proposed requirements are described averaged over 2010 and 2011 because Entry permits are available), and the below for each of the six elements of the the fleet was substantially smaller than Mariana Islands); 2,089 tropical troll proposed rule—three elements the current 40-vessel size in years and 572 Hawaii handline vessels (based regarding the oceanic whitetip shark previous to 2010, 100% observer on the number of active troll and and silky shark and three elements coverage started in 2010, and 2011 is the handline vessels in American Samoa, regarding the whale shark. last year for which near-complete data Guam, the Commonwealth of the Oceanic Whitetip Shark and Silky are available. Fishing effort estimates Northern Mariana Islands, and Hawaii Shark Element (1): Prohibit the crew, are based on vessel logbook data, except in 2012, the latest year for which operator, and owner of a fishing vessel in the case of the American Samoa, from retaining on board, transshipping, complete data are available); 1 tropical CNMI, and Guam troll fisheries, for storing, or landing any oceanic whitetip pole-and-line vessel (based on the which creel survey data are used. shark or silky shark: This element number of active vessels in 2012), and Recent retention rates in the purse seine would prohibit the crew, operator, and 13 albacore troll vessels (based on the and longline fisheries are estimated owner of a fishing vessel of the United number of albacore troll vessels from vessel observer data. In the Hawaii States used for commercial fishing for authorized to fish on the high seas in troll fishery, vessel logbook data are HMS from retaining on board, the Convention Area as of July 2014). used, and in the American Samoa, transshipping, storing, or landing any Thus, the total estimated number of CNMI, and Guam troll fisheries, creel part or whole carcass of an oceanic vessels that would be subject to the rule survey data are used. Fish numbers are whitetip shark or silky shark that is is approximately 2,878. converted to weights based on vessel caught in the Convention Area. This observer data for each fishery, except for On June 12, 2014, the Small Business requirement would not impose any new the troll fisheries, for which weight data Administration (SBA) issued an interim reporting or recordkeeping are lacking and the average weights in final rule revising the small business requirements. It is not expected to the Hawaii deep-set longline fishery are size standards for businesses including require any professional skills that the used. The average weights used are, for those in the fishing industry, effective affected vessel owners, operators and oceanic whitetip shark and silky shark, July 14, 2014 (79 FR 33647). The rule crew do not already possess. This respectively: purse seine: 23 kg and 32 increased the size standard for Finfish requirement would apply to owners, kg; Hawaii deep-set longline: 27 kg and Fishing to $20.5 million. Based on operators and crew of any vessel used 28 kg; Hawaii shallow-set longline: 27 (limited) available financial information to fish for HMS for commercial kg and 28 kg; American Samoa longline: about the affected fishing fleets and the purposes in the Convention Area. 26 kg and 18 kg; and tropical troll: 27 SBA’s definition of a small finfish Accordingly, it would apply to all kg (the two species cannot be accurately harvester (i.e., gross annual receipts of vessels identified above. Based on the distinguished in the data and are less than $20.5 million, independently best available data, oceanic whitetip combined for the purpose of this owned and operated, and not dominant shark and silky shark are not caught in analysis). in its field of operation), and using the Hawaii handline fishery, the Hawaii In the purse seine fishery, in which individual vessels as proxies for pole-and-line fishery, or the albacore about 40 vessels are expected to individual businesses, NMFS believes troll fishery. Thus, compliance costs are participate in the near future, it is that all of the affected fish harvesting expected only in the purse seine, estimated that 0.1 oceanic whitetip businesses are small entities. As longline, and tropical troll fleets. This shark and 2.9 silky shark would be indicated above, there are currently 40 requirement would foreclose harvesting retained (under no action) per vessel per purse seine vessels in the affected purse businesses’ opportunity to retain and year, on average. Applying the average seine fishery. Average annual receipts sell or otherwise make use of the two weights and price given above, these for each of the 40 vessels during the last species. The compliance cost for each amounts equate to estimated lost annual three years for which reasonably entity can be approximated by the ex- revenue of about $140 per vessel, on complete data are available, 2010–2012, vessel value of the amount of the two average. were estimated by multiplying the species that would be expected to be As indicated above, about 162 vessels vessel’s reported retained catches of retained if it were allowed (under no are expected to participate in the each of skipjack tuna, , action). Price data for specific shark affected longline fisheries in the near and bigeye tuna in each year by an species and in specific fisheries is future. The longline fisheries operating indicative regional cannery price for lacking, so this analysis assumes that in the Convention Area include the that species and year (developed by the the ex-vessel value of both species in all Hawaii-based fisheries, which include a Pacific Islands Forum Fisheries Agency affected fisheries is $1.50/kg, which is tuna-targeting deep-set fishery and and available at https://www.ffa.int/ the 2011 ex-vessel price (converted to swordfish-targeting shallow set fishery, node/425#attachments), summing the 2013 dollars) for sharks generally in and the American Samoa-based fishery. receipts across species for each year, Hawaii’s commercial pelagic fisheries Occasionally there is also longline and averaging the total estimated (which do not include the purse seine fishing by vessels based in the Mariana receipts across the three years. The fishery, in which the fate and value of Islands, where participation is typically

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fewer than three vessels in any given per vessel per year, and an estimated vessels used for commercial fishing for year. No vessel observer data are annual compliance cost of less than one HMS in the Convention Area to allow available specifically for the Mariana dollar per vessel. The creel survey and assist observers in the collection of Islands longline fishery, making it encountered no retained sharks in the oceanic whitetip shark or silky shark difficult to analyze shark catch rates, but CNMI troll fishery in 2008–2012, so the samples: This element would require shark catch rates in the other longline best estimate of lost annual revenue for the vessel crew, operator, and owner to fisheries might be reasonable proxies for each of the approximately 35 vessels allow and assist a WCPFC observer to catch rates in the Mariana Islands expected to participate in this fishery is collect samples of dead oceanic whitetip fishery. In that case, to the extent either zero. sharks or silky sharks when requested to oceanic whitetip shark or silky shark is Oceanic Whitetip Shark and Silky do so by the observer. In such cases, and caught and retained in the Mariana Shark Element (2): Require the crew, in any case in which the observer Islands longline fishery in the future, operators, and owners of U.S. fishing collects a sample of an oceanic whitetip the effects of the proposed rule can be vessels used for commercial fishing for shark or silky shark, the crew, operator, expected to be about the same—on a HMS in the Convention Area to release and owner would be relieved of the two per-unit of fishing effort basis—as those any oceanic whitetip shark or silky requirements listed above. Under in the other longline fisheries, as shark caught in the Convention Area: existing regulations, operators and crew described here. In the Hawaii and This element would require the vessel of vessels with WCPFC Area American Samoa longline fisheries, it is crew, operator, and owner to release any Endorsements (i.e., vessels authorized to estimated that 0.2 oceanic whiteip shark oceanic whitetip shark or silky shark be used for commercial fishing for HMS and 0.1 silky shark would be retained caught in the Convention Area as soon on the high seas in the Convention (under no action) per vessel per year, on as possible after the shark is caught and Area) are already required to assist average. These amounts equate to brought alongside the vessel and take observers in the collection of samples. estimated lost annual revenue of about reasonable steps to ensure its safe This would effectively expand that $12 per vessel, on average. release, without compromising the requirement—for just these two shark safety of any persons. This requirement Catch and retention rates of the two species—to vessels not required to have would not impose any new reporting or shark species in the tropical troll WCPFC Area Endorsements. This recordkeeping requirements. It is not fisheries are difficult to estimate for requirement would not impose any new expected to require any professional several reasons. For example, in the reporting or recordkeeping skills that the affected vessel owners, requirements. It is not expected to Hawaii troll fishery, there is no species operators and crew do not already code for silky shark so any catches of require any professional skills that the possess. This requirement could bring affected vessel owners, operators and that species are recorded as unidentified costs in the form of reduced efficiency sharks. In the troll fisheries of the three crew do not already possess. Although of fishing operations, but it is difficult this element would relieve vessel territories, because the two carcharhinid to assess the costs because it is not species are retained only infrequently, it owners, operators and crew from the possible to predict whether or how requirements of the first two elements is difficult to generate estimates of total vessel operators and crew would change catches of the two species with much described above in those cases where their release/discard practices relative to the vessel observer collects a sample of certainty using the creel surveys that what they do currently. For purse seine sample only a subset of all fishing trips. an oceanic whitetip shark or silky shark, vessels, it is expected that in most cases, it would not be expected to relieve Because of these and other limitations, the fish would be released after it is fishing businesses of the costs identified only very approximate estimates can be brailed from the purse seine and above for the no-retention requirement, made. For this analysis, all unidentified brought on deck. In these cases, the since the samples would be kept by the sharks in the data are assumed to be labor involved would probably be little observer and would not be available for oceanic whitetip shark or silky shark, so different than current practice for sale or other use by the fishing business. the resulting estimates are upper-bound discarded sharks. If the vessel operator This element could also bring additional estimates. In the Hawaii troll fishery it and crew determined that it is possible costs to fishing businesses because it is estimated that 9 sharks would be to release the fish before it is brought on would require the owner, operator, and retained (under no action) per year, on deck, this would likely involve greater crew to assist the observer in the average, for the fishery as a whole. With intervention and time on the part of approximately 1,694 vessels expected to crew members, with associated labor collection of samples if requested to do participate in the fishery (based on the costs. For longline and troll vessels, it so by the observer. Observers would be number active in 2012), this equates to is expected that the fish would be under instructions to collect samples about 0.01 sharks per vessel per year, quickly released as it is brought to the only if they do so as part of a program and an estimated lost annual revenue of side of the vessel, such as by cutting the that has been specifically authorized by less than one dollar per vessel. The line or removing the hook. In these the WCPFC Scientific Committee, and Guam troll fishery, with about 351 cases, no costs would be incurred. In only from sharks that are dead when vessels expected to participate in the some cases the vessel operator and crew brought alongside the vessel. It is not near future, is expected to retain about might determine that it is necessary to possible to project how often observers 2 sharks per year (under no action), on bring the fish on board the vessel before would request assistance in collecting average, for the fleet as a whole. This releasing it. This would involve greater samples. When it does occur, it is not equates to about 0.01 sharks per vessel labor than releasing the fish from expected that sample collection would per year, and an estimated annual alongside the vessel, but the be so disruptive as to substantially delay compliance cost of less than one dollar circumstances in these cases might be or otherwise impact fishing operations, per vessel. In the American Samoa troll unchanged from the current situation, in but the fishing business could bear fishery, it is estimated that about 0.3 which case no new costs would be small costs in terms of crew labor, and sharks would be retained, on average, incurred. possibly the loss of storage space that per year (under no action). With about Oceanic Whitetip Shark and Silky could be used for other purposes. 9 vessels expected to participate in the Shark Element (3): Require the crew, Whale Shark Element (1): Prohibit fishery, this equates to about 0.03 sharks operators, and owners of U.S. fishing owners, operators, and crew of U.S.

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fishing vessels used for commercial unpublished data), it can be expected possess. Unpublished historical vessel fishing for HMS in the Convention Area that approximately 652 fishing days per observer data from the FFA observer from setting or attempting to set a purse year will be spent by the fleet in that program indicates that all whale sharks seine on or around a whale shark: This area in the future. At that level of captured in the U.S. WCPO purse seine requirement would prohibit owners, fishing effort, if pre-set whale shark- fishery are released; that is, they are not operators and crew of fishing vessels sighting events occurred in 2 to 5 per retained or marketed. The release from setting or attempting to set a purse thousand fishing days, as described requirement, therefore, is not expected seine in the Convention Area on or above, they would occur 1.3 to 3.3 times to have any effect on fishing operations around a whale shark if the animal is per year, on average, for the fleet as a or to bring any compliance costs. The sighted prior to the commencement of whole, or 0.03 to 0.08 times per year for requirement to release the sharks in a the set or the attempted set. This each of the 40 vessels in the fleet, on manner that results in as little harm to requirement would apply to all U.S. average. In those instances that a whale the shark as possible without purse seine vessels fishing on the high shark is sighted prior to an intended set, compromising the safety of any persons seas and in the EEZs in the Convention the vessel operator would have to wait would be a new and potentially Area, except the EEZs of the PNA. This and/or move the vessel to find the next burdensome requirement, but it is not requirement would not impose any new opportunity to make a set. The possible to quantitatively assess the cost reporting or recordkeeping consequences in terms of time lost and for two reasons. First, it is not clear how requirements. It is not expected to distance travelled and associated costs often whale sharks would be encircled. require any professional skills that the cannot be projected with any certainty. As indicated above, the average annual affected vessel owners, operators and At best, the operator would find an rate by U.S. purse seine vessels in the crew do not already possess. In the opportunity to make a set soon after the Convention Area in 2010 and 2011 was event that a whale shark is sighted in event, and only trivial costs would be about 5 encirclements per thousand the vicinity of a purse seine vessel prior incurred. At worst, the vessel operator fishing days. But the rate in the future to a desired set, complying with the would lose the opportunity to make a is expected to be reduced as a result of proposed rule could cause forgone set for the remainder of the day. Under the setting prohibition described in the fishing opportunities and result in this worst-case assumption, a vessel first whale shark element, above. economic losses. It is difficult to project could lose the net benefits associated Nonetheless, if 5 encirclements per the frequency of pre-set whale shark- with 0.03 to 0.08 fishing days per year, thousand fishing days is considered an sighting events because such events are on average. Those lost net benefits upper-bound projection, then at a future not recorded. Historical data on whale cannot be estimated because of a lack of fishing effort rate of 7,991 fishing days shark catches are available, but catches fishing cost data, but information on per year in the Convention Area (based are not equivalent to pre-set whale shark gross receipts can provide an upper- on the average spent in 2010 and 2011) sightings, for two reasons. On the one bound estimate. Using regional cannery and 40 vessels in the fleet, an upper- hand, presumably not all whale sharks prices in 2012 for each of the three bound projection of the rate of within ‘‘sightable’’ distance of a set are marketable tuna species, and the U.S. encirclements per vessel is one per year, actually caught (thus, in this respect, fleet’s average catches and fishing days on average. The second reason for the whale shark catch data under-represent in 2011–2012, the expected gross difficulty in assessing the compliance pre-set whale shark sighting events). On receipts per fishing day would be about costs of this requirement is that current the other hand, according to anecdotal $60,000. Thus, an upper-bound estimate vessel practices regarding whale shark information from purse seine vessel of the loss in gross revenue that could releases are not known in detail. operators, not all captured whale sharks occur to a vessel as a result of losing Although data on the condition of each are seen before the set commences (thus, 0.03 to 0.08 fishing days is captured whale shark is available (e.g., in this respect, the whale shark catch approximately $1,800 to $4,800 per based on unpublished FFA observer data over-represent pre-set whale shark- year. data for 2010 and 2011, 68% of captured sighting events). Nonetheless, historical Whale Shark Element (2): Require the whale sharks were released alive, 2% whale shark catch rates can provide a crew, operator, and owner of U.S. were released dead, and the condition of rough indicator of the frequency of pre- fishing vessels used for commercial the remainder was unknown), these data set whale shark sighting events in the fishing for HMS in the Convention Area do not reveal anything about whether future. Based on unpublished vessel to release any whale shark that is the condition of the released whale observer data from the FFA observer encircled in a purse seine net: This sharks could have been better, or what program, the average whale shark catch element would require the crew, the vessel crew would have had to have rate in 2010–2011 for the U.S. purse operator, and owner of a fishing vessel done to improve the sharks’ condition. seine fishery in the Convention Area, to release any whale shark that is In conclusion, this requirement might excluding the EEZs of the PNA, was encircled in a purse seine net in the bring some costs to purse seine vessel approximately 2 fish per thousand Convention Area, and to do so in a operations, in the form of the crew fishing days. The average catch rate manner that results in as little harm to potentially having to spend more time during that period in the Convention the shark as possible, without handling encircled whale sharks (at Area as a whole (including the waters of compromising the safety of any persons. most, one per year per vessel, on the PNA EEZs) was about 5 fish per This requirement would apply to all average) in order to release them with as thousand fishing days. For this analysis, U.S. purse seine vessels fishing on the little harm as possible. this range of 2–5 events per thousand high seas and in the EEZs of the Whale Shark Element (3): Require the fishing days is used as an estimate of Convention Area, including the EEZs of owner and operator of a fishing vessel pre-set whale shark-sighting events in the PNA. This requirement would not that encircles a whale shark to record the future. Based on the average levels impose any new reporting or the incident on a catch report form: This of U.S. purse seine fishing effort in the recordkeeping requirements. It is not requirement would require the owner Convention Area outside the EEZs of the expected to require any professional and operator of a fishing vessel that PNA in 2010 and 2011 (462 and 842 skills that the affected vessel owners, encircles a whale shark with a purse fishing days, respectively; NMFS operators and crew do not already seine net in the Convention Area to

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ensure that the incident is recorded by The regulation also requires the crew, that ‘‘CCMs shall prohibit their flagged the end of the day on the catch report operator and owner to release vessels from setting a purse seine on a form, or Regional Purse Seine Logsheet unharmed, to the extent practicable, all school of tuna associated with a whale (RPL) maintained pursuant to 50 CFR oceanic whitetip shark when brought shark if the animal is sighted prior to 300.34(c)(1), in the format specified by alongside the vessel. The area of the commencement of the set’’ the NMFS Pacific Islands Regional application of this regulation overlaps (emphasis added). NMFS considered Administrator. This requirement would with the area of application of the developing alternative means of apply to all U.S. purse seine vessels oceanic whitetip shark requirements of implementing the prohibition on setting fishing on the high seas and in the EEZs these proposed regulations. Specifically, on a school of tuna, such as specifying of the Convention Area, including the both regulations would apply in the area a minimum distance for the prohibition EEZs of the PNA. Because catch and of overlap between the respective areas (e.g., no setting within half a mile of a effort logbooks are already required to of application of the Convention and of whale shark sighting) or a minimum be maintained and submitted in the the Antigua Convention, which is the time period for the prohibition (e.g., no purse seine fishery, there would be no area bounded by the latitudes of 4° S. setting within 10 minutes of sighting a additional cost associated with and 40° S. and the longitudes of 130° W. whale shark). However, NMFS did not submitting the logbook, but vessels and 150° W. Although the two identify any such alternative for this would be required to record additional regulations would overlap element that would be reasonable and information associated with whale shark geographically, they would not conflict feasible. After a whale shark is sighted, encirclements. The required information or establish duplicative or redundant it is unclear where and when it will for each incident would include a requirements because compliance with next be sighted, since sharks do not description of the steps taken to one of the two regulations would satisfy have to return to the surface regularly to minimize harm and an assessment of its compliance with the other regulation. breathe. Therefore, NMFS determined condition upon its release. This Second, the regulation at 50 CFR that there is only one reasonable and additional information requirement 300.215(c)(3)(iii) requires that operators feasible manner of implementing this would be added to the information and crew of vessels that are required to element of the proposed rule. required to be reported under a current have WCPFC Area Endorsements (i.e., CMM 2012–04 also states that for information collection (OMB control vessels authorized to be used for fishing activities in the EEZs of CCMs number 0648–0218; see the section on commercial fishing for HMS on the high north of 30° N. latitude, CCMs shall the Paperwork Reduction Act below for seas in the Convention Area) assist implement either the provisions of more information). As indicated for the WCPFC observers in the collection of CMM 2012–04 or compatible measures previous element, it is not possible to samples. The proposed rule would consistent with the obligations under project the rate of encirclements with establish a similar requirement for all CMM 2012–04. The U.S. purse seine certainty, but one encirclement per U.S. vessels used for fishing for HMS in fleet does not fish north of 30° N. vessel per year, on average, is an upper- the Convention Area, but it would be latitude in the WCPO. Thus, rather than bound projection. NMFS estimates that limited to the collection of oceanic attempting to develop a separate set of it would take about 10 minutes to record whitetip shark and silky shark samples. ‘‘compatible measures’’ for EEZs of the required information for each Thus, the two regulations would overlap CCMs north of 30 °N. latitude that may encirclement. At an estimated labor cost with each with respect to the two shark or may not be triggered by any actual of $25 per hour, the annual cost per species and vessels required to have U.S. purse seine operations, NMFS vessel would be about $4. WCPFC Area Endorsements. However, decided to implement the provisions of There would be no disproportionate the two regulations would not conflict CMM 2012–04 for all EEZs in the economic impacts between small and or establish duplicative or redundant Convention Area (with the exception of large vessel-operating entities resulting requirements because compliance with the first element not being applicable to from this rule. Furthermore, there one of the two regulations would satisfy the EEZs of the PNA, as described would be no disproportionate economic compliance with the other. above). NMFS did not identify any other impacts based on vessel size, gear, or NMFS has not identified any Federal alternatives for any of the elements of homeport, as all the vessels in the fleets regulations that duplicate or conflict the proposed rule. would be subject to the same with the proposed regulations. Taking no action could result in lesser adverse economic impacts than the requirements and NMFS has not Alternatives to the Proposed Rule identified any factors related to vessel proposed action for many affected size, gear, or homeport that would lead NMFS has not identified any entities, but NMFS has determined that to disproportionate impacts. significant alternatives to the proposed the no-action alternative would fail to rule for the oceanic whitetip shark and accomplish the objectives of the WCPFC Duplicating, Overlapping, and silky shark elements, other than the no- Implementation Act, including Conflicting Federal Regulations action alternative. NMFS considered satisfying the obligations of the United NMFS has identified two Federal alternatives for the whale shark States as a Contracting Party to the regulations that overlap with the elements of the proposed rule. As Convention. proposed regulations. discussed above, the first element of the First, the regulation at 50 CFR proposed rule for the whale shark Paperwork Reduction Act 300.25(e)(4) prohibits the crew, would prohibit owners, operators, and This proposed rule contains a change operator, or owner of a U.S. fishing crew of fishing vessels from setting or request to a collection-of-information vessel used to fish for HMS in the attempting to set a purse seine in the subject to the Paperwork Reduction Act eastern Pacific Ocean—specifically, east Convention Area on or around a whale (PRA) that has been approved by the of 150° W. longitude in the Pacific shark if the animal is sighted prior to Office of Management and Budget Ocean, between the latitudes of 40° N. the commencement of the set or the (OMB) under control number 0648– and 40° S.—from retaining on board, attempted set. This element would 0218, ‘‘South Pacific Tuna Act’’ (the transshipping, landing, storing, selling, apply on the high seas and in the EEZs whale shark encirclement reporting or offering for sale any part or whole of the Convention Area, except for the requirement). The public reporting carcass of an oceanic whitetip shark. EEZs of the PNA. CMM 2012–04 states burden for the catch report form (also

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known as the RPL) under that ■ 2. In § 300.211, the definition of ■ 5. In § 300.223, paragraphs (g) and (h) collection-of-information is estimated to ‘‘Parties to the Nauru Agreement’’ is are added to read as follows: average one hour per response (i.e., per added, in alphabetical order, to read as fishing trip), including the time for follows: § 300.223 Purse seine fishing restrictions. reviewing instructions, searching * * * * * existing data sources, gathering and § 300.211 Definitions. (g) Owners, operators, and crew of maintaining the data needed, and * * * * * fishing vessels of the United States used completing and reviewing the collection Parties to the Nauru Agreement for commercial fishing for HMS in the of information. Under this proposed means the parties to the Nauru Convention Area shall not set or attempt rule, in the event that a whale shark is Agreement Concerning Cooperation in to set a purse seine in the Convention encircled in a purse seine net, the Management of Fisheries of Area on or around a whale shark information about that event would be Common Interest, as specified on the (Rhincodon typus) if the animal is required to be included in the catch Web site of the Parties to the Nauru sighted at any time prior to the report form. Providing this additional Agreement at www.pnatuna.com. commencement of the set or the information would increase the * * * * * attempted set. This paragraph does not reporting burden by approximately 10 ■ 3. In § 300.218, paragraph (g) is added apply to the territorial seas or minutes per encirclement, which, given to read as follows: archipelagic waters of any nation, as an estimated one encirclement per year defined by the domestic laws and and five fishing trips per year, on § 300.218 Reporting and recordkeeping regulations of that nation and requirements. average, equates to approximately 2 recognized by the United States, or to minutes per fishing trip or per response. * * * * * areas under the national jurisdiction of Therefore, the new estimated burden (g) Whale shark encirclement reports. the Parties to the Nauru Agreement. per response (i.e., per fishing trip) for The owner and operator of a fishing (h) The crew, operator, and owner of the catch report form would be 62 vessel of the United States used for a fishing vessel of the United States minutes. Send comments regarding this commercial fishing in the Convention used for commercial fishing for HMS in burden estimate, or any other aspect of Area that encircles a whale shark the Convention Area must release any this data collection, including (Rhincodon typus) with a purse seine in whale shark that is encircled in a purse suggestions for reducing the burden, to the Convention Area shall ensure that seine net in the Convention Area, and Michael D. Tosatto, Regional the incident is recorded by the end of take reasonable steps for its safe release, Administrator, NMFS PIRO (see the day on the catch report forms without compromising the safety of any ADDRESSES) and by email to maintained pursuant to § 300.34(c)(1), persons. This paragraph does not apply [email protected] or fax in the format specified by the Pacific to the territorial seas or archipelagic to 202–395–7285. Islands Regional Administrator. This waters of any nation, as defined by the Notwithstanding any other provision paragraph does not apply to the domestic laws and regulations of that of the law, no person is required to territorial seas or archipelagic waters of nation and recognized by the United respond to, and no person shall be any nation, as defined by the domestic States. subject to penalty for failure to comply laws and regulations of that nation and ■ 6. Section 300.226 is added to read as with, a collection of information subject recognized by the United States. follows: ■ 4. In § 300.222, paragraphs (rr), (ss), to the requirements of the PRA, unless § 300.226 Oceanic whitetip shark and silky that collection of information displays a (tt), (uu), and (vv) are added to read as follows: shark. currently valid OMB control number. (a) The crew, operator, and owner of List of Subjects in 50 CFR Part 300 § 300.222 Prohibitions. a fishing vessel of the United States * * * * * used for commercial fishing for HMS Administrative practice and (rr) Fail to submit, or ensure cannot retain on board, transship, store, procedure, Fish, Fisheries, Fishing, submission of, a whale shark or land any part or whole carcass of an Marine resources, Reporting and encirclement report as required in oceanic whitetip shark (Carcharhinus recordkeeping requirements, Treaties. § 300.218(g). longimanus) or silky shark Dated: August 19, 2014. (ss) Set or attempt to set a purse seine (Carcharhinus falciformis) that is caught Samuel D. Rauch III, on or around a whale shark (Rhincodon in the Convention Area, unless subject Deputy Assistant Administrator for typus) in contravention of § 300.223(g). to the provisions of paragraph (c) of this Regulatory Programs, National Marine (tt) Fail to release a whale shark section. Fisheries Service. encircled in a purse seine net of a (b) The crew, operator, and owner of For the reasons set out in the fishing vessel as required in a fishing vessel of the United States preamble, 50 CFR part 300 is proposed § 300.223(h). used for commercial fishing for HMS to be amended as follows: (uu) Use a fishing vessel to retain on must release any oceanic whitetip shark board, transship, store, or land any part or silky shark caught in the Convention PART 300—INTERNATIONAL or whole carcass of an oceanic whitetip Area as soon as possible after the shark FISHERIES REGULATIONS shark (Carcharhinus longimanus) or is caught and brought alongside the silky shark (Carcharhinus falciformis) in vessel, and take reasonable steps for its ■ 1. The authority citation for 50 CFR contravention of § 300.226(a). safe release, without compromising the part 300, subpart O, continues to read as (vv) Fail to release an oceanic safety of any persons, unless subject to follows: whitetip shark or silky shark as required the provisions of paragraph (c) of this Authority: 16 U.S.C. 6901 et seq. in § 300.226(b). section.

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(c) Paragraphs (a) and (b) of this whitetip shark or silky shark in the samples of oceanic whitetip shark or section do not apply in the event that a Convention Area. silky shark in the Convention Area, if WCPFC observer collects, or requests (d) The crew, operator, and owner of requested to do so by the WCPFC the assistance of the vessel crew, a fishing vessel of the United States observer. used for commercial fishing for HMS in operator, or owner in the observer’s [FR Doc. 2014–19962 Filed 8–21–14; 8:45 am] collection of, samples of oceanic the Convention Area must allow and assist a WCPFC observer to collect BILLING CODE 3510–22–P

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