International Fisheries; Pacific Tuna Fisheries; Safe Handling and Release Practices for Sharks on Longline Vessels and Revision to Vessel Monitoring System Requirements in the Eastern Pacific Ocean

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS is proposing regulations under the Tuna Conventions Act of 1950, as amended, to implement Resolutions C-23-07 (Conservation Measures for the Protection and Sustainable Management of Sharks) and C-23-11 (On the Establishment of a Vessel Monitoring System) adopted by the Inter-American Tropical Tuna Commission (IATTC) at its meeting in August 2023 in Victoria, Canada. This proposed rule would implement provisions of these Resolutions and would require U.S. longline vessels fishing for tuna or tuna-like species in the eastern Pacific Ocean (EPO) that have incidental shark catch to release sharks by leaving them in the water and cutting the branchline so that less than 1 meter remains on each animal. The proposed rule would also require large vessels fishing for tuna or tuna-like species in the EPO to make manual reports every six hours in the event of a malfunctioning vessel monitoring system (VMS) unit. This action is necessary for the United States to satisfy its obligations as a member of the IATTC.

DATES:

Comments on the proposed rule and supporting documents must be submitted in writing by May 28, 2024.

ADDRESSES:

A plain language summary of this proposed rule is available at https://www.regulations.gov/docket/NOAA-NMFS-2024-0041 . You may submit comments on this document, identified by NOAA-NMFS-2024-0041, by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Visit https://www.regulations.gov and type NOAA-NMFS-2024-0041 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

• Mail: Submit written comments to Amanda Munro, NMFS West Coast Region Long Beach Office, 501 W Ocean Blvd., Suite 4200, Long Beach, CA 90802. Include the identifier “NOAA-NMFS-2024-0041” in the comments.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on https://www.regulations.gov without change. All personal identifying information ( e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

Copies of the draft Regulatory Impact Review (RIR) and other supporting documents are available via the Federal eRulemaking Portal: https://www.regulations.gov, docket NOAA-NMFS-2024-0041 or contact the Highly Migratory Species Branch, Amanda Munro, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802, or WCR.HMS@noaa.gov.

Send comments on the collection of information pursuant to the Paperwork Reduction Act (PRA) by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-5806.

FOR FURTHER INFORMATION CONTACT:

Amanda Munro, NMFS, (619) 407-9284, Amanda.Munro@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background on the Inter-American Tropical Tuna Commission

The United States is a member of the IATTC, which was established in 1949 and operates under the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention).

The IATTC consists of 21 member nations and 5 cooperating non-member nations. The IATTC facilitates the conservation, research, and management of tuna and tuna-like species in the IATTC Convention Area (Convention Area). The Convention Area is defined as waters of the EPO within the area bounded by the west coast of the Americas and by 50° N latitude, 150° W longitude, and 50° S latitude. The IATTC maintains a scientific research and fishery monitoring program and regularly assesses the status of tuna, shark, and billfish stocks in the EPO to determine appropriate catch limits and other measures to promote sustainable fisheries and prevent overexploitation.

The text of the Antigua Convention can be found here: https://www.iattc.org/PDFFiles/IATTC-Instruments/_English/IATTC_Antigua_Convention%20Jun%202003.pdf.

International Obligations of the United States Under the Convention

As a Party to the Antigua Convention and a member of the IATTC, the United States is legally bound to implement decisions of the IATTC. The Tuna Conventions Act (TCA), 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. All Resolutions adopted by the IATTC can be found online: https://iattc.org/ResolutionsActiveENG.htm.

IATTC Resolutions on Sharks and VMS

The IATTC held its 101st Meeting in August 2023 in Victoria, Canada. During this meeting, the IATTC adopted several resolutions, including the two that would be implemented by this proposed rule—IATTC Resolutions C-23-07 (Conservation Measures for the Protection and Sustainable Management of Sharks) and C-23-11 (On the Establishment of a Vessel Monitoring System).

IATTC Resolution C-23-07 includes new requirements regarding safe handling and release procedures for sharks caught by longline vessels. Paragraph 11(f) of the Resolution includes the requirements to “leave the shark in the water, where possible” and “use a line cutter to cut the branchline as close to the hook as possible, and so that less than 1 meter remains on the animal, to the extent practicable.” It also includes provisions applicable to all vessels prohibiting shark finning and requiring sharks be landed with fins naturally attached, which are already required in the United States by the Shark Conservation Act of 2010.

To ensure that vessel locations and identification numbers remain available to relevant authorities at a consistent interval even in the event of a technical failure, IATTC Resolution C-23-11 specifies a manual reporting requirement in the event of a malfunctioning VMS unit for vessels above 24 meters (78.74 feet) in length. The Resolution states in paragraph 4 that “a fishing vessel with a defective satellite tracking device shall communicate to the . . . relevant competent authority at a minimum every 6 hours, reports containing [vessel identification number, location, date, time, speed, and course] by appropriate telecommunication means ( e.g., radio, web-based reporting, electronic mail, telefax or telex).”

Proposed Regulations for Sharks

This proposed rule, if adopted, would amend 50 CFR 300.27(k), which currently contains shark handling and release requirements for purse seine vessels, to also include shark handling and release requirements for longline vessels. No changes are proposed to the existing requirements for purse seine vessels. Specifically, the proposed rule would require U.S. longline vessel owners and operators to leave live, unretained sharks in the water and cut the branchline so that less than 1 meter of trailing gear remains on the animal. If this procedure is not possible without compromising the safety of any persons, the vessel owner or operator would be required to cut the branchline as close to the hook as possible.

To facilitate the trimming of the branchline to the appropriate length, longline vessel owners or operators would be required to carry a line clipper meeting minimum design standards onboard the vessel and use it to cut branchline. The standards for this line clipper would be the same as those already required for Hawaii-based longline vessels (see 50 CFR 665.812(a)(5)), which make up the majority of longline vessels fishing in the EPO. The standards for the line clipper would include a protected cutting blade with an edge capable of cutting monofilament line or braided mainline that is securely fastened to an extended reach holder of at least 6 feet.

Shark finning ( i.e., the practice of removing any fin from the body of a shark at sea) is prohibited in the United States by the Shark Conservation Act of 2010, which was implemented by regulations at 50 CFR part 600, subpart N. The statute and regulations also prohibit the possession, transfer, and landing of any shark fin that is not naturally attached ( i.e., attached to the corresponding shark carcass through some portion of uncut skin). As part of this rulemaking, NMFS is proposing to include a cross-reference to these regulations in the regulations governing EPO tuna fisheries, which are found in 50 CFR part 300, subpart C. The cross-reference would make clear the regulations in 50 CFR part 600, subpart N apply to vessel owners and operators fishing for tuna and tuna-like species in the IATTC Convention Area.

Proposed Regulations for VMS

Any U.S. commercial fishing vessel that is 24 meters or more in overall length and engaging in fishing activities for tuna or tuna-like species in the IATTC Convention Area is already required to have a VMS unit installed, per regulations at 50 CFR 300.26(b). In the rare event of a technical failure of a VMS unit while the vessel is at sea, vessel operators are required to notify NOAA Office of Law Enforcement (OLE) and follow OLE's instructions (see 50 CFR 300.26(c)(4)(ii)).

This proposed rule would add the requirement of manual reporting in the event of a malfunctioning VMS unit. NMFS would require vessel owners and operators to provide manual reports to OLE with specific information every 6 hours by appropriate telecommunication means such as radio, email, or telephone. The manual reports would include: the vessel's identification, the vessel's geographical position (latitude and longitude) with an error of less than 100 meters at a confidence level of 98 percent, the date and time of the fixing of the vessel's position, and the vessel's speed and course. NMFS would require these reports to continue until the VMS unit issue is resolved or the vessel is back in port.

Classification

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act and other applicable laws, subject to further consideration after public comment.

Executive Order 12866

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

Paperwork Reduction Act

The VMS section of this proposed rule contains a revision to a collection-of-information requirement for purposes of the Paperwork Reduction Act of 1995 (PRA). West Coast Region Vessel Monitoring System and Pre-Trip Reporting System Requirements, OMB Control Number(s): 0648-0498, would be modified to add the manual reporting requirement in the event of a technical VMS unit failure. All VMS and pre-trip reporting requirements under that collection-of-information would continue to apply.

NMFS estimates that the public reporting burden for the collection of information for manual VMS reports will average 5 minutes per report, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

NMFS requests any comments on the addition of the VMS manual reporting data collection to 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 OIRA_Submission@omb.eop.gov, 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.

Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The rationale for this certification is provided in the following paragraphs.

Background

This action would apply to U.S. commercial fishing vessels of several gear types fishing for tuna and tuna-like species in the IATTC Convention Area. The objectives of the proposed action are: (1) to reduce post-release mortality of incidentally caught shark species, (2) ensure vessel locations and identification numbers remain available to relevant authorities even in the event of a technical VMS unit failure, and (3) fulfill international obligations of the United States as a member of the IATTC.

As described under Proposed regulations for sharks and Proposed regulations for VMS, the proposed rule would require U.S. longline vessels with incidental catch of sharks to leave the shark in the water and cut trailing gear, using a specified line clipper, so that less than 1 meter of trailing gear remains on the animal. It would also require large vessels fishing for tuna or tuna-like species, in the event of a malfunctioning VMS unit, to make manual reports every 6 hours of the vessel's identification, date, time, geographical position, speed, and course. The entities directly affected by the proposed action are: (1) U.S. vessels greater than 24 meters in overall length that fish for tuna or tuna-like species in the IATTC Convention Area, which include purse seine vessels, longline vessels, troll/jig, and multipurpose vessels; and (2) all other U.S. longline vessels fishing in the IATTC Convention Area.

For RFA purposes only, NMFS has established a small business size standard of $11 million in annual gross receipts for all businesses, including their affiliates, primarily engaged in the commercial fishing industry (see 50 CFR 200.2). This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 114111), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses.

NMFS prepared analyses for this regulatory action based on this size standard. All of the entities directly regulated by this regulatory action are commercial finfish fishing businesses. Under this size standard, some U.S. fishing vessels affected by this action are considered large businesses, while others are small businesses.

Impacts to Longline Vessels From Proposed Regulations on Sharks

The proposed action would implement shark handling and release requirements for all owners and operators of U.S. longline fishing vessels fishing in the IATTC Convention Area. To estimate the number of affected entities, we utilized landings data from the Pacific Islands Fisheries Science Center (PIFSC), Pacific highly migratory species (HMS) permits (issued under 50 CFR 660.707), Hawaii longline limited access permits (issued under 50 CFR 665.13), and high seas fishing permits (issued under 50 CFR 300.333).

Between 2019 and 2023, an average of 115 U.S. longline vessels fished for HMS in the IATTC Convention Area. The majority of these longline vessels have Hawaii longline limited access permits or both Hawaii and Pacific HMS permits. Three of these longline vessels were based on the West Coast and operated solely under the Pacific HMS permit and high seas permit. U.S. West Coast-based longline vessels operating under the Pacific HMS permit fish primarily in the EPO are currently restricted to fishing with deep-set longline gear outside of the U.S. exclusive economic zone (EEZ) and can only make landings on the U.S. West Coast. Hawaii-based longline vessels fishing in the EPO as well as the Western Central Pacific Ocean (WCPO) can fish with both shallow-set and deep-set longline gear outside of the U.S. EEZ and make landings in Hawaii as well as the West Coast.

According to U.S. logbook and observer data between 2018 and 2023, longline vessels in the EPO interacted with an average of 16 different shark species every year, including Smooth hammerhead shark ( Sphyrna zygaena), Shortfin mako shark ( Isurus oxyrinchus), Tiger shark ( Galeocerdo cuvier), and others. The vessels caught between 5,191 and 10,799 sharks every year with an average of 7,679 sharks per year. The majority of these sharks were released alive, with an average of 6,820 sharks ( i.e., 89 percent) released alive per year.

The ultimate fate of sharks post-release is often unobserved, so survivorship is largely unquantified. A growing body of research suggests that post-release mortality of sharks caught by longline vessels varies widely, depending on species and other factors. Research from PIFSC suggests that animals released with a minimum of trailing fishing gear have the highest rates of survival.

Between 2019 and 2023, longline vessels that fished in the IATTC Convention Area had average ex-vessel revenues ranging from $197,301 to $255,985 for total landings, including those in the EPO and WCPO. The maximum ex-vessel revenue of any longline vessel that fished in the IATTC Convention Area was well below the $11 million threshold for finfish harvesting businesses. Therefore, all of the longline vessels impacted by the proposed rule would be considered small business entities.

One economic impact of the proposed action to these entities would be the requirement to carry a specified line clipper to free incidentally caught sharks. Longline vessels with Hawaii longline limited access permits are already required to carry line clippers that meet these same specifications through regulations codified at 50 CFR 665.812. Therefore, it is expected that only the three vessels based on the West Coast would be required to purchase materials and assemble the line clipper. Each line clipper costs between $15 and $30 to make.

Another potential economic impact could be a loss of fishing time due to increased handling and release procedures. The amount of time lost would likely vary depending on crew experience, weather conditions, and shark species, among other factors. However, the time lost is expected to be minimal.

All of these vessels are considered small businesses, so there will not be a disproportionate impact between small and large businesses as a result of this requirement.

Impacts to Vessels Over 24 Meters in Length From Proposed Regulations on VMS

The proposed action would also implement a requirement for manual reporting in the event of a malfunctioning VMS unit for all owners and operators of U.S. commercial fishing vessels 24 meters or more in overall length used to target tuna or tuna-like species in the IATTC Convention Area. To estimate the number of entities affected by this portion of the proposed action, we utilized the number of vessels authorized to fish for HMS in the EPO as a reasonable proxy. The permits used to estimate the number of affected entities were: Pacific HMS permits (issued under 50 CFR 660.707) and high seas fishing permits (issued under 50 CFR 300.333). We obtained revenue data from IATTC, PIFSC, and SWFSC.

As of January 2024, there were 145 vessels of this size authorized to fish for HMS in the EPO on the IATTC Regional Vessel Register. These vessels include purse seine, longline, multipurpose, and troll/jig vessels.

Purse Seine vessels: As of January 2024, there are 15 U.S. purse seine vessels larger than 24 meters in length registered to fish in the IATTC Convention Area. These purse seine vessels target skipjack tuna by fishing on floating objects and unassociated sets; they also catch and retain yellowfin and bigeye tuna. Based on the limited financial information about the affected fishing fleets and using individual vessels as proxies for individual businesses, NMFS analyzed revenue for the 15 currently active vessels within the large purse seine fleet by vessel.

Regional Purse Seine Logbook (RPL) data from NMFS' 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. Because 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 obtained from RPLs and IATTC observer data to estimate the vessels' annual receipts. Indicative regional cannery prices are available through 2020 (developed by the Pacific Islands Forum Fisheries Agency; available at https://www.ffa.int ). NMFS estimated vessels' annual receipts during 2019-2020. Using this approach, NMFS estimates that among the affected vessels, the range in annual average receipts in 2019-2020 was $400,000 to $15 million with an average of approximately $8 million.

Based on this limited financial information about the affected fishing fleets, NMFS believes that over half of the vessels in the purse seine fleet 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 million.

Longline vessels: As stated previously in the previous section of this RFA discussion, all of the longline vessels that fished in the IATTC Convention Area between 2019 and 2023, including vessels longer than 24 meters in length impacted by these proposed VMS provisions, would be considered small businesses.

Troll/Jig and Multipurpose: North Pacific albacore troll is a West Coast fishery that historically operates during the summer months, ranging from Southern California to Canadian waters. Currently, most vessels are based out of Oregon and Washington, with some vessels based out of California. Between 2019 and 2023, 43 troll/jig and multipurpose vessels larger than 24 meters in length made landings on the West Coast. Among these vessels, average ex-vessel revenue ranged from $48 to $942,686, with an average of $140,860. All of these vessels had annual revenues less than $11 million and thus are considered to be small entities.

VMS unit failures: According to NOAA OLE, over the course of 2 years in 2022 and 2023, there were 36.5 VMS unit failures among 1,600 West Coast vessels. Based on these numbers, it is reasonable to estimate that approximately 1 percent of vessels equipped with VMS will experience a VMS unit failure at sea in a given year. Therefore, with a maximum of 145 vessels impacted by the rulemaking, and a 1 percent failure rate, NMFS conservatively estimates that 1.5 vessels per year might experience a failure and be impacted by the proposed action, on average. A failure would require that vessel operator to make a series of 5-10 minute phone calls or emails every 6 hours until the issue is resolved. As the cost of a phone call or email is generally less than a dollar, the economic impact of the new reporting requirements would be minimal. This impact is the same regardless of the type of vessel impacted, so impacts between large and small entities are expected to be the same.

Overall Economic Impacts of Proposed Regulations

In summary, the proposed action, if adopted, is not expected to have a significant adverse economic impact on the profitability of a substantial number of small entities or a disproportionate economic effect on small entities relative to large entities. The entities impacted by the provisions related to VMS are considered large and small businesses, and the entities impacted by the provisions related to sharks are considered small businesses. The impacts of both components of the proposed rule are minor and do not have different impacts on large and small entities. The proposed action, if adopted, is not expected to substantially change the typical fishing practices of the affected vessels. Any impact to the income of U.S. vessels is expected to be minimal.

Therefore, the action is not expected to have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 300

• Administrative practice and procedure
• Fish
• Fisheries
• Fishing
• Marine resources
• Reporting and recordkeeping requirements
• Treaties

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 300 as follows:

PART 300—INTERNATIONAL FISHERIES REGULATIONS

Subpart C—Eastern Pacific Tuna Fisheries

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

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

2. In § 300.24, revise paragraph (z) to read as follows:

3. In § 300.26, revise paragraph (c)(4)(ii) to read as follows:

4. In § 300.27, revise paragraph (k) and add paragraphs (m) and (n) to read as follows: