2024-28466. International Fisheries; Pacific Tuna Fisheries; Fish Aggregating Device Design and Reporting Requirements in the Eastern Pacific Ocean

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Department of Commerce

National Oceanic and Atmospheric Administration

1. 50 CFR Part 300
2. [Docket No. 241129-0306]
3. RIN 0648-BM70

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS is issuing and modifying regulations under the Tuna Conventions Act (TCA) of 1950, as amended, to implement two Resolutions adopted at the 101st Meeting of the Inter-American Tropical Tuna Commission (IATTC) in August 2023. These Resolutions include Resolution C-23-03 (Amendment to Resolution C-99-07 on Fish Aggregating Devices) and Resolution C-23-04 (On the Design and ( print page 96907) Biodegradability of Drifting Fish Aggregating Devices (DFADs) in the IATTC Area of Competence). This final rule modifies regulations for the design of fish aggregating devices (FADs) in the eastern Pacific Ocean (EPO) to require that they be designed with non-entangling and biodegradable materials. The rule also requires that vessel owners and operators collect data related to the recovery, disposal, or recycling of FADs and submit these data to the IATTC, unless the information is already collected and submitted to the IATTC by an observer.

DATES:

This rule is effective January 6, 2025.

ADDRESSES:

A plain language summary of this rule is available at https://www.regulations.gov/​docket/​NOAA-NMFS-2023-0147.

Copies of supporting documents that were prepared for this rule, including the regulatory impact review (RIR), are available via the Federal e-Rulemaking Portal: https://www.regulations.gov, docket NOAA-NMFS-2023-0147, or contact Highly Migratory Species Branch Staff, Karter Harmon, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802, or [e-mail].

Written comments and recommendations for this information collection should be submitted at the following website: https://www.reginfo.gov/​public/​do/​PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0148.

FOR FURTHER INFORMATION CONTACT:

Karter Harmon, NMFS West Coast Region (WCR), at [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

Background on the IATTC

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 (1949 Convention). In 2003, the IATTC updated the 1949 Convention through the adoption of 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 Antigua Convention entered into force in 2010. The United States acceded to the Antigua Convention on February 24, 2016. The full text of the Antigua Convention is available at: https://www.iattc.org/​PDFFiles2/​Antigua_​Convention_​Jun_​2003.pdf.

The United States implements binding decisions of the IATTC as domestic regulations under the Tuna Conventions Act of 1950, as amended, 16 U.S.C. 951 et seq. (Pub. L. 114-81). The TCA 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 Resolutions on Fish Aggregating Devices

The 101st Meeting of the IATTC was held in Victoria, Canada, in August 2023. At this meeting, the IATTC adopted Resolution C-23-03 (Amendment to Resolution C-99-07 on Fish Aggregating Devices) and Resolution C-23-04 (On the Design and Biodegradability of Drifting Fish Aggregating Devices (DFADs) in the IATTC Area of Competence).

Resolution C-23-03 amends Resolution C-99-07 and continues to recommend that tender vessels operating in support of vessels fishing on FADs in the EPO remain prohibited. The Resolution stipulates that vessels may engage in FAD recovery activities that are limited to the collection of FADs for final disposal, not maintenance or adjustment. The Resolution requires that Members and Cooperating Non-Members report all associated information on any such FAD recovery activities to the IATTC Secretariat. The Resolution encourages the initiation of FAD recovery programs through cooperative initiatives among fishing vessels and other vessels implementing recovery projects in the IATTC Convention Area. These measures are intended to improve FAD management and data collection for FAD-associated fishing sets and to reduce their impacts.

Resolution C-23-04 contains new requirements regarding materials that can be used in FADs that are deployed or redeployed in the IATTC Convention Area. These include biodegradable and non-entangling materials, which would be phased in between 2025 and 2029. Beginning on January 1, 2025, purse seine vessel owners and operators are required to meet non-entangling design requirements for FADs, and the use of mesh nets is prohibited for any part of a FAD. The Resolution defines “non-entangling FAD” as “a FAD that does not include any netting materials for any part of the FAD including both the surface structure ( e.g., raft) and subsurface structure ( e.g., tail).” Beginning on January 1, 2026, purse seine vessel owners and operators are required to begin using biodegradable materials in either the surface or subsurface portion of FADs. By January 1, 2029, both the surface and subsurface portion of the FAD must be composed of biodegradable materials. These measures are intended to reduce marine pollution and other impacts associated with non-biodegradable FADs.

NMFS published a proposed rule on July 19, 2024 (89 FR 58698), for public review and comment. The comment period closed on August 19, 2024. The preamble to the proposed rule contains additional background information that is not repeated here.

Final Regulations

This rule is implemented under the TCA (16 U.S.C. 951 et seq.) and includes changes to part 300, subpart C of title 50 of the Code of Federal Regulations (CFR). This rule implements the following three provisions in Resolutions C-23-03 and C-23-04:

First, the rule establishes new requirements for vessels that choose to recover FADs in the IATTC Convention Area for the purpose of final disposal. Except for authorized tuna purse seine vessels, vessels engaged in recovery activities may not deploy FADs. Recovered FADs must be taken on board and brought to port for recycling or final disposal. The rule also implements a reporting requirement for information associated with all FADs recovered by vessel owners and operators in the IATTC Convention Area, unless that information is already reported by an observer. These data must be reported to the IATTC scientific staff for analysis using a format and address provided by NMFS. Because these data are routinely collected by observers, this reporting requirement will only apply in situations where a vessel engaged in FAD recovery does not have an observer on board.

Second, beginning on January 1, 2025, U.S. purse seine vessel owners and operators will be required to meet non-entangling design requirements for FADs deployed or redeployed in the IATTC Convention Area. A definition of “non-entangling FAD,” consistent with the definition adopted by the IATTC, is included in the regulations as follows: “Non-entangling FAD means a FAD that does not include any netting materials for any part of the FAD including both ( print page 96908) the surface structure ( e.g., raft) and subsurface structure ( e.g., tail).”

Third, beginning on January 1, 2026, U.S. purse seine vessel owners and operators will be required to meet standards for biodegradable materials in either the surface or subsurface components of FADs in the IATTC Convention Area. A definition of “biodegradable,” consistent with the definition adopted by the IATTC, is included in the regulations as follows: “Biodegradable means non-synthetic materials and/or bio-based alternatives that are consistent with approved international standards for materials that are biodegradable in marine environments. The components resulting from the degradation of these materials should not be damaging to the marine and coastal ecosystems or include heavy metals or plastics in their composition. Examples of non-synthetic materials include plant-based materials such as cotton, jute, manila hemp (abaca), bamboo, and natural rubber; and animal-based materials such as leather, wool, and lard. The approved international standards are ASTM D6691, ASTM D7881, and TUV Austria.”

By January 1, 2026, FADs must be constructed according to one of three sets of specifications. Under option one, the surface part of the FAD must be made of fully biodegradable materials, except for flotation components, but the subsurface part may contain non-biodegradable materials ( e.g., synthetic raffia, metallic frame, plastic floats, nylon ropes). Under option two, the subsurface part of the FAD must be made of fully biodegradable materials, but the surface part and any flotation components may be made of non-biodegradable materials. Under option three, the surface part, except for flotation components, and subsurface part must both be made of fully biodegradable materials. All three options would allow for plastic-based flotation components ( e.g., plastic buoys, foam, purse-seine corks). The third option allows an exception for satellite buoys that are attached to FADs to track them, and for nylon ropes, which can be used exclusively to strengthen the structure of the floating or underwater component of the FAD.

By January 1, 2029, all FADs deployed or redeployed in the IATTC Convention Area must be designed and constructed such that the surface part and subsurface part are both made of fully biodegradable materials, except that any flotation component on the surface part may still be made of non-biodegradable materials. The exceptions for satellite buoys and nylon ropes will continue to apply.

Public Comments and Responses

NMFS received two comments during the 30-day comment period on the proposed rule, which closed on August 19, 2024. One comment was from a member of the general public and was fully supportive of the proposed rule as written. The second comment was from American Tunaboat Association (ATA), which represents U.S. large purse seine vessels in the Pacific Ocean. This comment, while generally supportive, raised two issues with the proposed rule text which are addressed below.

Issue 1: The commenters noted that the length of time needed to comply with the collection of information requirements for the FAD recovery form is likely to be greater than the 5 minutes estimated in the proposed rule.

NMFS Response: NMFS acknowledges the experience of industry participants in providing an estimate of the time burden for filling out forms and reporting information to the IATTC. After considering this public comment, NMFS has updated the estimated average time burden for collection of information associated with this rule from 5 minutes to 15 minutes, if FADs are voluntarily retrieved for disposal. However, as the commenters pointed out, much of the relevant information would already be collected by IATTC observers aboard the U.S. large purse seine vessels and therefore the time burden is unlikely to fall upon vessel owners and operators except when extenuating circumstances preclude the collection of such information by observers.

Issue 2: The commenters noted that the projected impacts on the profitability of the fishery resulting from FAD design requirements in this action are uncertain and may be greater than the estimates offered in the proposed rule. In particular, the commenters stated that the data produced by the IATTC and the International Seafood Sustainability Foundation (ISSF) overestimate the average amount of tuna which can reliably be harvested from biodegradable FADs and underestimate the costs associated with transitioning from traditional to biodegradable FADs.

NMFS Response: NMFS appreciates the perspectives of industry participants regarding the economic burden of transitioning from traditional to biodegradable FADs. NMFS cited the publicly available information from ISSF and the IATTC to estimate costs and harvest potential, but also acknowledges the fishing industry may have additional experiences with biodegradable FADs. NMFS also acknowledges there may be uncertainty and variation in harvest with biodegradable FADs between vessels as well.

However, the costs associated with the transition to the proposed FAD designs are not expected to reduce profitability or significantly impact the fleet because replacing and redeploying FADs has always been considered routine by large purse seine vessels, regardless of design type. Due to the routine nature of replacement and redeployment of FADs, large purse seine vessels already consider such operating costs. Based on available public information, NMFS does not predict that costs of replacement and redeployment of biodegradable FADs will vary so significantly from current estimates used by large purse seine vessels as to impact profitability. As such, the uncertainty highlighted by the commenter does not alter our determination, pursuant to the Regulatory Flexibility Act, that this action is not expected to have a significant economic impact on a substantial number of small entities.

Changes From the Proposed Rule

The Classification section of this final rule includes an adjustment to the estimated time burden of the collection-of-information requirements, in response to the information submitted by industry participants via public comment. No changes to the regulatory text were made between the proposed and final rule.

Classification

The NMFS Assistant Administrator has determined that this final rule is consistent with the TCA and other applicable laws.

Executive Order 12866

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

Paperwork Reduction Act

This final rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This rule changes the existing requirements for the collection of information No. 0648-0148 (West Coast Region Pacific Tuna Fisheries Logbook, Fish Aggregating Device Form, and Observer Safety Reporting) by requiring U.S. vessel owners and operators who voluntarily recover FADs for disposal or recycling to report information to the IATTC, unless that information is already collected and submitted to the ( print page 96909) IATTC by an observer onboard the vessel. Current FAD reporting requirements under that collection of information would continue to apply. Public reporting burden for reporting on recovered FADs is estimated to average 15 minutes per form, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

This public reporting burden will only be incurred in potential situations where an observer is either not present aboard the vessel, or is unable to collect the relevant information due to extenuating circumstances. Additionally, under existing regulations at 50 CFR 300.22(c), vessel owners and operators that do not have an observer on board are required to report detailed information on any interaction or activity with a deployed FAD, including information about the design of the FAD. The public reporting burden for this existing collection of information for FAD design will not change as a result of this final rule.

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted at the following website: https://www.reginfo.gov/​public/​do/​PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0148.

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, 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 during the proposed rule stage that, for purposes of the Regulatory Flexibility Act, this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. Information received through public comment highlights uncertainty in some of the costs which may be incurred by the action. This information does not alter the analysis of the action as described in the proposed rule. Therefore, the initial certification published with the proposed rule—that this rule is not expected to have a significant economic impact on a substantial number of small entities—remains unchanged. As a result, a regulatory flexibility analysis was not required and none was prepared.

Executive Order 13175

NMFS has determined that this action would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes; therefore, consultation with Tribal officials under Executive Order 13175 is not required, and the requirements of sections (5)(b) and (5)(c) of E.O. 13175 also do not apply. A Tribal summary impact statement under section (5)(b)(2)(B) and section (5)(c)(2)(B) of Executive Order 13175 is not required and has not been prepared.

List of Subjects in 50 CFR Part 300

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

Dated: December 2, 2024.

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 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. Amend § 300.21 by adding definitions, in alphabetical order, for “Biodegradable” and “Non-entangling FAD” to read as follows:

§ 300.21

Definitions.

* * * * *

Biodegradable means non-synthetic materials and/or bio-based alternatives that are consistent with approved international standards for materials that are biodegradable in marine environments. The components resulting from the degradation of these materials should not be damaging to the marine and coastal ecosystems or include heavy metals or plastics in their composition. Examples of non-synthetic materials include plant-based materials such as cotton, jute, manila hemp (abaca), bamboo, and natural rubber; and animal-based materials such as leather, wool, and lard. The approved international standards are ASTM D6691, ASTM D7881, and TUV Austria.

* * * * *

Non-entangling FAD means a FAD that does not include any netting materials for any part of the FAD including both the surface structure ( e.g., raft) and subsurface structure ( e.g., tail).

* * * * *

3. Amend § 300.22 by adding paragraph (c)(5) to read as follows:

§ 300.22

Recordkeeping and reporting requirements.

* * * * *

(c) * * *

(5) Reporting on recovered FADs. U.S. vessel owners and operators must report information on FADs that are recovered for disposal or recycling to the IATTC, unless that information is already reported to the IATTC by an observer. This information must be reported using a format and address provided by the HMS Branch. The owner and operator must ensure that the form is submitted within 30 days of each recovery to the address specified by the HMS Branch.

* * * * *

4. Amend § 300.24 by adding paragraphs (rr) and (ss) to read as follows:

§ 300.24

Prohibitions.

* * * * *

(rr) Except for tuna purse seine vessels, when recovering FADs, performing maintenance and adjustments on deployed FADs, or deploying a FAD.

(ss) Deploy or redeploy a FAD in the IATTC Convention Area that fails to comply with the FAD design requirements in § 300.28(g) and (h).

5. Amend § 300.28 by:

a. Revising the heading to paragraph (f);

b. Adding paragraph (f)(3);

c. Revising paragraph (g); and

d. Adding paragraph (h).

The revisions and additions read as follows:

§ 300.28

FAD restrictions.

* * * * *

( print page 96910)

(f) Restrictions on FAD deployments, removals, and recovery.

* * * * *

(3) U.S. vessel owners and operators may recover FADs for final disposal or recycling. Recovery activities must be limited to the collection of FADs for final disposal or recycling and may not include any type of maintenance or adjustment on deployed FADs.

(g) Non-entangling FAD materials. Beginning January 1, 2025, U.S. purse seine vessel owners and operators must ensure that the design and construction of any FAD to be deployed or redeployed ( i.e., placed in the water) in the IATTC Convention Area uses only non-entangling FAD materials.

(h) Biodegradable FAD materials. In addition to complying with the requirement to use non-entangling materials specified in paragraph (g) of this section, vessel owners and operators must ensure that the design and construction of any FAD to be deployed or redeployed in the IATTC Convention Area meets the following specifications:

(1) Beginning January 1, 2026, all FADs deployed or redeployed in the IATTC Convention Area must be designed and constructed according to one of the following sets of specifications:

(i) The surface part of the FAD must be made of fully biodegradable materials, except for flotation components ( e.g., plastic buoys, foam, purse-seine corks), whereas the subsurface part of the FAD may contain non-biodegradable materials ( e.g., synthetic raffia, metallic frame, plastic floats, nylon ropes); or

(ii) The subsurface part of the FAD must be made of fully biodegradable materials, whereas the surface part and any flotation components ( e.g., plastic buoys, foam, purse-seine corks) of the FAD may contain non-biodegradable materials ( e.g., synthetic raffia, metallic frame, plastic floats, nylon ropes); or

(iii) The surface part, except for flotation components ( e.g., plastic buoys, foam, purse-seine corks), and subsurface part must be made of fully biodegradable materials. Non-biodegradable materials, in particular nylon ropes, can be used exclusively to strengthen the structure of the floating or underwater component of the FAD.

(2) Beginning January 1, 2029, all FADs deployed or redeployed in the IATTC Convention Area must be made of fully biodegradable materials, except for flotation components ( e.g., plastic buoys, foam, purse seine corks), which may be made of non-biodegradable material. Non-biodegradable materials, in particular nylon ropes, can be used exclusively to strengthen the structure of the floating or underwater component of the FAD.

(3) Restrictions on biodegradable FAD materials set forth in paragraphs (h)(1) and (2) of this section do not apply to satellite buoys that are attached to FADs in order to track them.