[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Rules and Regulations]
[Pages 62732-62735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26387]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 180716668-8668-01]
RIN 0648-BI37
International Fisheries; Pacific Tuna Fisheries; Fishing
Restrictions for Fish Aggregating Devices in the Eastern Pacific Ocean
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS is issuing regulations under the Tuna Conventions Act to
implement Resolution C-18-05 (Amendment of Resolution C-16-01 on the
Collection and Analysis of Data on
[[Page 62733]]
Fish-Aggregating Devices), which was adopted at the 93rd Meeting of the
Inter-American Tropical Tuna Commission (IATTC) in August 2018. The
Resolution includes construction standards for fish aggregating devices
(FADs) intended to reduce entanglements of marine life when fishing for
tropical tuna (i.e., bigeye tuna (Thunnus obesus), yellowfin tuna
(Thunnus albacares), and skipjack tuna (Katsuwonus pelamis)) in the
eastern Pacific Ocean (EPO). This final rule will revise the existing
regulations for consistency with the new Resolution. In addition, this
rule revises the definition of ``Active FAD'' and regulations related
to activating FADs at sea that were codified in the April 2018 rule.
This final rule is necessary for the conservation of living marine
resources in the EPO and for the United States to satisfy its
obligations as a member of the IATTC.
DATES: This rule is effective January 7, 2019.
ADDRESSES: Copies of the Regulatory Impact Review, and other supporting
documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2018-0124, or by contacting the
Highly Migratory Species Branch Chief, Heidi Taylor, 501 W. Ocean
Blvd., Suite 4200, Long Beach, CA 90208, [email protected].
FOR FURTHER INFORMATION CONTACT: Rachael Wadsworth, NMFS at 562-980-
4036.
SUPPLEMENTARY INFORMATION:
Background
The final rule is implemented under the Tuna Conventions Act (16
U.S.C. 951 et seq.). This final rule applies to U.S. purse seine
vessels fishing for tropical tunas in the IATTC Convention Area. The
IATTC Convention Area is defined as waters of the EPO bounded by the
west coast of the Americas and by 50[deg] N latitude, 150[deg] W
longitude, and 50[deg] S latitude.
Changes From Final Rule Published in April 2018
Resolution C-18-05 imposes new restrictions on FAD design
standards. NMFS implemented FAD construction standards adopted by the
IATTC in a final rule published on April 11, 2018, in the Federal
Register (83 FR 15503) which implemented Resolution C-17-02
(Conservation Measures for Tropical Tunas in the Eastern Pacific Ocean
During 2018-2020 and Amendment to Resolution C-17-01). These
regulations are set to become effective January 1, 2019.
Although Resolution C-17-02 included broadly worded restrictions on
the use of entangling material on FADs, NMFS opted to establish
standards that were more specific than the Resolution in the April 2018
final rule. NMFS did this to aid with compliance and enforcement and to
further the intent of the Resolution that member nations require owners
and operators of their vessels ensure FADs designed and deployed reduce
entanglements of sharks, sea turtles, and other species.
Under the April 2018 final rule, U.S. vessel owners, operators, or
crew must ensure any netting used in the subsurface structure of the
FAD is tightly tied into bundles (``sausages''). In addition, if the
FAD design includes a covered raft (e.g., flat raft or rolls of
material) and if mesh netting is used for the cover, the mesh netting
must be tightly wrapped around the entire raft such that no loose
netting hangs below.
New Regulations Beginning in 2019
This final rule implements provisions in Resolution C-18-05 that
specifies materials and designs that must be used to reduce
entanglement on FADs; those specifications are only partially
consistent with the April 2018 final rule. In accordance with
Resolution C-18-05, this final rule gives fishermen an additional
option for netting that hangs beneath a FAD, i.e., netting with small
mesh (stretched mesh size less than 7 centimeters) in a panel that is
weighted on the lower end with at least enough weight to keep the
netting taut in the water column. In addition, also in accordance with
Resolution C-18-05, this final rule also requires that if mesh netting
is used as part of the raft (e.g., flat raft or rolls of material) then
the mesh netting must be small mesh and must be tightly wrapped such
that no netting hangs below the FAD when deployed. This final rule also
includes a definition for mesh as the distance between the inside of
one knot to the inside of the opposing knot when the mesh is stretched,
regardless of twine size.
These requirements are intended to prohibit FAD designs that are
most dangerous for bycatch species, such as sharks. As stated in the
preamble of the April 2018 final rule, NMFS recognizes that any netting
used in a FAD may become loose over time. However, to achieve the
intent of Resolution C-18-05, the netting must remain secure and tight
whenever deployed. Therefore, NMFS reminds the fleet that in order to
keep FADs in compliance with these regulations, the purse seine
operators must remain vigilant in maintaining and securing all mesh net
used in FADs.
Futhermore, NMFS recognizes that the IATTC may continue to conduct
more work to define non-entangling FADs and to develop more specific
guidance on materials and designs for FADs. The United States intends
to continue working with the IATTC FAD Working Group and the IATTC on
methods to reduce entanglements in FADs. These regulations are likely
to be amended again in the next few years as the IATTC refines FAD
design requirements.
Although Resolution C-17-02 does not specifically define an
``Active FAD,'' paragraph 10 of Resolution C-17-02 states that for the
purposes of this resolution, a FAD is considered active when it: (a) Is
deployed at sea; and (b) starts transmitting its location and is being
tracked by the vessel, its owner, or operator. The April 2018 Final
rule codified a definition of ``Active FAD'' at 50 CFR 300.21 as a FAD
that is equipped with gear capable of tracking location, such as radio
or satellite buoys. A FAD with this equipment attached shall be
considered an Active FAD unless/until the equipment is removed and the
vessel owner or operator notifies the IATTC or HMS Branch that the FAD
is no longer active (i.e., deactivated). After publication of that
rule, information became available to NMFS from both industry and the
IATTC FAD Working Group meetings that revealed U.S. vessels and vessels
from other countries often stop tracking the location of FADs, while
the FAD is deployed on the high seas, but typically do not remove the
tracking equipment from FADs. Sometimes vessel owners or operators sell
the information or the right to access the existing tracking equipment
to other vessel owners or operators; the new owners/operators then
assume ownership and start tracking the FAD. The owner of the FAD also,
at times, stop tracking the location of a FAD for a period of time and
then ``reactivate'' and begin to track the location of the FAD again at
a later time.
In re-evaluating the meaning of ``Active FAD'' in Resolution C-17-
02, NMFS interprets paragraph 10(b) to mean that an Active FAD is a FAD
that is being ``tracked'' by a vessel owner or operator. Therefore, in
this rule, NMFS revises the definition of Active FAD to clarify that a
FAD that a FAD is considered Active when its location is being tracked
by the vessel owner or operator using tracking equipment, such as radio
or satellite buoys. A FAD shall be considered an Active FAD unless/
until (i) the vessel is no longer tracking it, and (ii) the vessel
owner or operator notifies the IATTC that the FAD is no longer active
(i.e., deactivated). In
[[Page 62734]]
addition, NMFS is revising the prohibition at Sec. 300.24 (kk) and FAD
restrictions at Sec. 300.28 (b) to clarify that ``when deploying a
FAD'' the tracking equipment must be turned on. This revision is
necessary to clarify that FADs already deployed at sea may be
reactivated if they were previously deactivated.
Classification
After consultation with the Departments of State and Homeland
Security, the NMFS Assistant Administrator has determined that this
final rule is consistent with the Tuna Conventions Act of 1950, as
amended, and other applicable laws, subject to further consideration
after public comment.
This rule has been determined to be not significant for purposes of
Executive Order 12866.
This rule does not require new collection-of-information
requirements subject to the Paperwork Reduction Act (PRA). The existing
information collection approval requirements under Office of Management
and Business (OMB) Control No. 0648-0148 (West Coast Region Pacific
Tuna Fisheries Logbook and Fish Aggregating Device Form) covers the
collections of information as amended by this rule. Notwithstanding any
other provision of the law, no person is required to respond to, nor
shall any person be subject to a penalty for failure to comply with, a
collection of information subject to the requirements of the PRA,
unless that collection of information displays a currently valid OMB
Control Number. All currently approved NOAA collections of information
may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
The Assistant Administrator for Fisheries has determined that the
need to comply by January 2019 with the international obligations of
the United States under a binding resolution adopted by the IATTC under
the Antigua Convention constitutes good cause, under 5 U.S.C.
553(b)(B), to waive the requirement for providing advance notice and
comment.
Good cause exists because the IATTC adopted Resolution C-18-05 at
the end of August, effective January 2019, rather than adopting the
resolution in June or early July, which is the typical timing of the
IATTC annual meeting. If the effectiveness of this rule were delayed
pending publication of a proposed rule, consideration of additional
public comments, and a 30-day delay in effectiveness, the U.S. would
likely miss the January 2019 deadline and be out of compliance with a
binding resolution. Additionally, the purse seine industry would be
delayed in being allowed the option of using small mesh hanging in a
panel beneath FADs, which we understand industry prefers to the current
requirement that it be tied in a bundle.
Further rationale for finding good cause to waive advance notice
and comment is that the proposed rule published on November 14, 2017,
in the Federal Register (82 FR 52700) to implement Resolution C-17-02
(Conservation Measures for Tropical Tunas in the Eastern Pacific Ocean
During 2018-2020 and Amendment to Resolution C-17-01), gave the public
notice that the FAD design requirements were likely to be further
refined. The revised requirements in Resolution C-18-05 are within the
scope of the alternatives for FAD design discussed in that proposed
rule. NMFS had initially proposed more stringent FAD construction
requirements than those that were promulgated in the final rule. The
changes between the proposed and final rule were made in consideration
of a comment from the American Tunaboat Association (ATA) that proposed
FAD design regulation went beyond the requirements in Resolution C-17-
02 and would disadvantage the U.S. fleet.
The revisions to the Active FAD definition and regulations related
to activating a FAD before deploying in the water will relieve
restrictions, as explained in the preamble of this rule.
The owners and operators of the sixteen U.S. large purse seine
vessels registered to fish in the EPO that would be impacted by the
rule are already familiar with the measures adopted by the IATTC. In
addition to sending professional representatives and lobbyists, many
owners and operators personally attended the 2017 and 2018 IATTC
meetings when Resolution C-17-02 and C-18-05 were adopted and were
closely involved in briefings and discussions with U.S. State
Department and NOAA leadership and staff. This action is necessary for
the United States to satisfy its international obligations as a member
of the IATTC.
As soon as the rule is published, NMFS will send a notice of this
rule to owners of vessels that are affected by this rule. The
Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), requires a
Regulatory Flexibility Analysis only for rules promulgated through
notice and comment rulemaking under Section 553(b) of the
Administrative Procedure Act or any other law. Because there is good
cause to waive notice and comment for this final rule, an RFA Analysis
was not prepared for this rule.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: November 29, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300, subpart
C, is amended as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart C--Eastern Pacific Tuna Fisheries
0
1. The authority citation for part 300, subpart C, continues to read as
follows:
Authority: 16 U.S.C. 951 et seq.
0
2. In Sec. 300.21, revise the definition of ``Active FAD'' and add a
definition for ``Mesh size'' in alphabetical order to read as follows:
Sec. 300.21 Definitions.
* * * * *
Active FAD means a FAD whose location is being tracked by the
vessel owner or operator using tracking equipment, such as radio or
satellite buoys. A FAD shall be considered an Active FAD unless/until
the vessel is no longer tracking its location and the vessel owner or
operator notifies the IATTC that the FAD is no longer active (i.e.,
deactivated).
* * * * *
Mesh size means the distance between the inside of one knot to the
inside of the opposing knot when the mesh is stretched, regardless of
twine size.
* * * * *
0
3. In Sec. 300.24, revise paragraph (kk) to read as follows:
Sec. 300.24 Prohibitions.
* * * * *
(kk) When deploying a FAD, activate the transmission equipment
attached to a FAD in a location other than on a purse seine vessel at
sea as required in Sec. 300.28(b).
* * * * *
0
4. In Sec. 300.28, revise paragraph (b) and (e), added by the final
rule at 83 FR 15510, April 11, 2018, to read as follows:
Sec. 300.28 FAD restrictions.
* * * * *
(b) Activating FADs for purse seine vessels. When deploying a FAD,
a vessel owner, operator, or crew shall turn on
[[Page 62735]]
the tracking equipment while the FAD is onboard the purse seine vessel
and before it is deployed in the water.
* * * * *
(e) FAD design requirements to reduce entanglements. All FADs
onboard or deployed by U.S. vessel owners, operators, or crew, must
comply with the following design requirements:
(1) Raft: If the FAD design includes a raft (e.g., flat raft or
rolls of material) and if mesh netting is used as part of the
structure, the mesh netting shall have a mesh size less than 7
centimeters and the mesh net must be tightly wrapped such that no
netting hangs below the FAD when deployed; and,
(2) Subsurface: Any netting used in the subsurface structure of the
FAD must be tightly tied into bundles (``sausages''), or have stretched
mesh size less than 7 centimeters in a panel that is weighted on the
lower end with at least enough weight to keep the netting taut in the
water column.
[FR Doc. 2018-26387 Filed 12-4-18; 8:45 am]
BILLING CODE 3510-22-P