International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions for Silky Shark, Fish Aggregating Device, and Observer Safety in the Eastern Pacific Ocean, 4250-4257 [2020-00880]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[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 https://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: https://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.

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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: https://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