Comment from James Walsh, Davis Wright Tremaine LLP

As you may know, the regulations governing the use of fish aggregating devices (FADs) in 2009 (74 Fed. Reg. 38544; August 4, 2013) resulted in a number of alleged violations, in particular with respect to whether the purse seine vessel itself and its workboats could be considered FADs. In that 2009 regulation, the agency stated that a fishing vessel was not considered a FAD, “provided the fishing vessel is not used for the purpose of aggregating fish.” The 2009 FAD regulations were intended to implement Conservation and Management Measure (CCM) 2008-1 adopted by the Western and Central Pacific Fisheries Commission (Commission), which created a ban on the use of FADs during 2009 and 2010. Unfortunately for those who had to try to figure out how to comply with the regulations, the Commission used two different definitions of what constituted a “FAD” in CCM 2008-1 and then amended that CCM (and the definition of a “FAD”) by adopting CCM 2009-01 which also addressed, for the first time, the use of lights that might be used either to try to “aggregate” fish or to move “aggregated” fish. NOAA’s 2009 FAD regulations did not address the use of lights. Once again, it appears, the agency is not being very precise with regard to a question which the vessel operators raised during the 2009 rulemaking: may the vessel catch fish that have aggregated under the vessel overnight? ... It appears the agency is trying to rectify the uncertainty caused by the 2009 FAD regulations in at least two ways: (1) stating simply that “[t]he definition of FAD does not include a vessel” eliminating the “purposefully to aggregate fish” text; and (2) specifying what kind of lights may be used and how they are used. These clarifications will be helpful but not unless the agency makes an effort to educate the international observers who serve ... (full text of comment uploaded to this page below)