[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]


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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.

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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