International Fisheries; Pacific Tuna Fisheries; Fish Aggregating Device Design and Reporting 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 proposes regulations under the Tuna Conventions Act of 1950 (TCA), 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 Biodegradability of Drifting Fish Aggregating Devices (DFADs) in the IATTC Area of Competence”). The proposed rule would modify regulations for the design of fish aggregating devices (FADs) in the eastern Pacific Ocean (EPO) to require non-entangling and biodegradable materials. Furthermore, the proposed rule would require that data related to the recovery of FADs for the purpose of final disposal or recycling in the EPO be collected by vessel owners and operators, and submitted to the IATTC, unless that information is already collected and submitted to the IATTC by an observer.

DATES:

Comments on the proposed rule and supporting documents must be submitted in writing by August 19, 2024.

ADDRESSES:

A plain language summary of this proposed rule is available at https://www.regulations.gov/docket/NOAA-NMFS-2023-0147 . You may submit comments on this document, identified by NOAA-NMFS-2023-0147, 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 enter “NOAA-NMFS-2023-0147” in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to Tyler Lawson, NMFS West Coast Region Portland Office, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232. Include the identifier “NOAA-NMFS-2023-0147” 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 supporting documents that were prepared for this proposed rule, including the regulatory impact review are available via the Federal e-Rulemaking Portal: https://www.regulations.gov, docket NOAA-NMFS-2023-0147, or by contacting Tyler Lawson (see address above, and other contact information in FOR FURTHER INFORMATION CONTACT ).

Send comments on aspects of the collection of information to Tyler Lawson (address above), by email to OIRA_Submission@omb.eop.gov, or by fax to (202) 395-5806.

FOR FURTHER INFORMATION CONTACT:

Tyler Lawson, NMFS West Coast Region, (503) 230-5421, tyler.lawson@noaa.gov.

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 IATTC consists of 21 member nations and 5 cooperating non-member nations. The IATTC facilitates scientific research, as well as the conservation and management, of tuna and tuna-like species in the IATTC Convention Area. The IATTC 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, sharks, and billfish stocks in the IATTC Convention Area to determine appropriate catch limits and other measures deemed necessary to promote sustainable fisheries and prevent the overexploitation of these stocks.

International Obligations of the United States Under the Antigua 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 under the TCA, as amended (16 U.S.C. 951 et seq.). 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 Resolutions C-23-03 and C-23-04.

Resolution C-23-03 amends Resolution C-99-07 and continues to recommend that tender vessels remain prohibited, while clarifying that vessels may engage in FAD recovery activities that are limited to the collection of FADs for final disposal, but not for maintenance or adjustment. If FADs are recovered for final disposal or recycling, the resolution requires that all associated information on FAD recovery activities be reported to the IATTC Secretariat. The resolution encourages the initiation of recovery programs for FADs through cooperative initiatives among fishing vessels and other vessels implementing recovery projects in the IATTC Convention Area.

Resolution C-23-04 contains new measures 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 will be prohibited for any part of a FAD. Resolution C-23-04 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. Resolution C-23-04 defines “biodegradable” as “non-synthetic materials and/or bio- based alternatives that are consistent with 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.”

Proposed Regulations for Fish Aggregating Devices

This proposed rule would be implemented under the TCA (16 U.S.C. 951 et seq.) and proposes changes to part 300, subpart C of title 50 of the Code of Federal Regulations (CFR). This proposed rule would implement provisions in Resolutions C-23-03 and C-23-04 that would: (1) clarify that vessels may engage in the recovery of FADs for final disposal or recycling and implement reporting requirements for recovered FADs, while continuing to prohibit tender vessels; (2) specify requirements for non-entangling FADs starting on January 1, 2025; and (3) specify requirements to phase in biodegradable FAD components starting on January 1, 2026.

Recovery of FADs for Final Disposal or Recycling

The proposed rule would implement the provisions of Resolution C-23-03 by clarifying what are considered allowable FAD recovery activities by vessels and by implementing disposal and reporting requirements for recovered FADs in the IATTC Convention Area. Cooperative initiatives and recovery projects are encouraged in the resolution; however, they are not intended to be the focus of the proposed rule or to be a formal NMFS program. Rather, the proposed rule is meant to clarify that vessels may volunteer to engage in recovery activities and to describe the permissible parameters of such activities. While tender vessels are still prohibited in the IATTC Convention Area (see 50 CFR 300.24(c) and 50 CFR 300.25(b)), the proposed rule would clarify that U.S. vessel owners and operators may recover FADs, provided the recovery activities are limited to collecting FADs for final disposal or recycling in port and do not include any type of maintenance, adjustment, or deployment.

Tuna purse seine vessels that recover FADs are still allowed to deploy and maintain FADs when engaged in normal fishing operations, but other vessels engaged in FAD recovery are prohibited from deploying or maintaining FADs. Purse seine vessels that interact with FADs must continue to comply with the requirements in 50 CFR 300.22 (c)(1).

The proposed rule would also implement 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 would be reported to the IATTC scientific staff for analysis using a format and address provided by NMFS. Because this information is already collected and reported to the IATTC by observers, if a vessel has an observer onboard, FAD recovery data would not need to be separately collected and reported by the vessel owners and operators.

FAD Design Requirements

The proposed rule would also implement the provisions of Resolution C-23-04 by amending regulations at 50 CFR 300.28 to require non-entangling and biodegradable materials. Since January 1, 2019, the IATTC and the United States have required “less entangling” FAD designs which allow a raft with mesh netting, if that mesh size is less than 7 centimeters and tightly wrapped such that no netting hangs below the FAD when deployed (see 50 CFR 300.28(g)(1)). Additionally, existing regulations stipulate that any netting used in the subsurface structure of the FAD must be tightly tied into bundles ( i.e., 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 (see 50 CFR 300.28(g)(2)).

The proposed rule would amend the existing regulations on FAD design to prohibit the use of mesh net from any part of the FAD and require all materials to be non-entangling beginning on January 1, 2025. A definition of “non-entangling FAD,” consistent with the definition adopted by the IATTC, would be included at 50 CFR 300.21 as follows: “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).”

Additionally, beginning on January 1, 2026, the proposed rule would implement a phased approach requiring FADs to be made out of biodegradable materials. As discussed in more detail in the next paragraphs, purse seine vessel owners and operators would be required to begin using biodegradable materials in either the surface or subsurface portion of FADs beginning on January 1, 2026, and would be required to use biodegradable materials in both the surface and subsurface portion of the FAD beginning on January 1, 2029. A definition of “biodegradable,” consistent with the definition adopted by the IATTC, would be included at 50 CFR 300.21 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 biodegradable 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.

NMFS seeks comments on additional materials that could be authorized as biodegradable. In the future, if the members of the IATTC approve other standards, NMFS will revise the definition accordingly to include them.

By January 1, 2026, the proposed rule would require all FADs deployed or redeployed in the IATTC Convention Area to be designed and 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 would allow 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, the proposed rule would require all FADs deployed or redeployed in the IATTC Convention Area to 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 discussed in the previous paragraph would continue to apply.

Classification

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the TCA 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

This proposed rule contains changes to the collection of information requirement for the purposes of the Paperwork Reduction Act of 1995 (PRA). NMFS is amending the supporting statement for the “West Coast Region Pacific Tuna Fisheries Logbook, Fish Aggregating Device Form, and Observer Safety Reporting,” Office of Management and Business (OMB) PRA requirements (OMB Control No. 0648-0148) to include the data collection requirements for U.S. vessel owners and operators to report information on recovered FADs to the IATTC if that information is not already collected and submitted to the IATTC by an observer onboard the vessel. Current FAD reporting requirements under that collection of information would continue to apply.

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

Under existing regulations at 50 CFR 300.22(c), vessel owners and operators that do not have an observer onboard are required to report detailed information on any interaction or activity with a deployed FAD, including information about the design of the FAD. NMFS estimates that the public reporting burden for this existing collection of information for FAD design will not change if the proposed changes to FAD design requirements are implemented.

NMFS is requesting public comment on the addition of the FAD recovery program data collection to the PRA package, including whether the paperwork would unnecessarily burden any vessel owners and operators. Public comment is sought regarding: (1) 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; (2) the accuracy of the burden estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and, (4) ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. See ADDRESSES section above for information on where to send comments on these or any other aspects of the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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: https://www.reginfo.gov/public/do/PRAMain.

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 (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The rationale for the certification is provided in the following paragraphs.

The U.S. SBA defines a “small business” (or “small entity”) as one with annual revenue that meets or is below an established size standard. For RFA purposes only, NMFS has established a small business size standard of $11 million in annual gross receipts for businesses, including their affiliates, whose primary industry is commercial fishing (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 in light of 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. purse seine vessels affected by this action are considered large, and some are small businesses. Non-fishing vessels may also engage in these voluntary FAD recovery activities. NMFS is aware of one non-governmental organization engaging in this activity in the western Pacific Ocean but is not aware of non-fishing vessels engaged in this activity in the IATTC Convention Area. Given the lack of information on these non-fishing vessels, NMFS is unable to evaluate if these entities are a small or large business. NMFS plans to reevaluate engagement of non-fishing vessels in FAD recovery programs in the future if more data become available on these activities.

U.S. Purse Seine Vessels Fishing in the IATTC Convention Area

There are two components to the U.S. tuna purse seine fishery in the EPO: (1) large purse seine vessels ( i.e., size class 6; greater than 363 metric tons (mt) carrying capacity) that typically are based in the western and central Pacific Ocean (WCPO); and (2) coastal purse seine vessels with smaller fish hold volumes ( i.e., size class 2-3; between 46 and 181 mt carrying capacity) that are based out of California. The proposed regulations would apply only to vessels that recover FADs in the IATTC Convention Area. To date, NMFS is only aware of large purse seine vessels being potentially interested in engaging in this activity in the EPO.

As of February 2024, the U.S. has 15 large purse seine vessels (all size class 6) registered to fish in the IATTC Convention Area. These large purse seine vessels target skipjack tuna by fishing on FADs and also fish on unassociated sets of schooling tuna. They also catch and retain yellowfin and bigeye tuna.

Currently, there are 15 active large U.S. purse seine vessels on the IATTC Regional Vessel Register authorized to fish in the EPO. Thirteen of these vessels also have Western and Central Pacific Fisheries Commission (WCPFC) Area Endorsements. WCPFC Area Endorsements are NMFS-issued authorizations required for a vessel to fish commercially for highly migratory species on the high seas in the WCPFC Convention Area as defined at 50 CFR 300.211. NMFS used cannery data from the IATTC and Regional Purse Seine Logbook (RPL) data from Pacific Islands Fisheries Science Center to estimate fish landings in both the EPO and WCPO for the vessels that fished in both the IATTC and WCPFC Convention Areas within a year.

Because neither gross receipts nor ex-vessel price information specific to individual fishing vessels are available to NMFS, NMFS applied regional price data—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.

Using this approach, NMFS estimates that among the affected vessels, the range in average annual per-vessel receipts in 2021-2023 was $500,000 to $13.4 million with an average of approximately $9.5 million. Ten of the active purse seine vessels had estimated average annual receipts of less than $11 million, and thus are considered to be small entities. The remaining five are considered large businesses.

Economic Impacts

The expected economic effects of the proposed action are discussed in detail in the following paragraphs.

FAD recovery: Resolution C-23-03 encourages the commencement of recovery programs for FADs among fishing vessels and other vessels implementing recovery projects in the IATTC Convention Area. The proposed rule would establish reporting requirements for FAD recoveries if they occur. Because it is not mandatory to participate in the recovery of a FAD, any potential costs of recovering FADs are optional for U.S. vessels. For fishing vessel owners and operators opting to take part, the recovery operations could occur on fishing trips and would not necessarily need to be a separate trip to recover a FAD. As stated previously, non-fishing vessels may also engage in voluntary FAD recovery activities, but NMFS does not have enough information on what types of vessels may do this to include in this analysis. For vessel owners or operators that choose to participate in the recovery of FADs, the reporting requirements are similar to existing requirements of 50 CFR 300.22 (c) and are not expected to reduce the profitability of the fishery.

Non-entangling and biodegradable FAD design: As described earlier in this preamble, the use of non-entangling and biodegradable materials would be required for FADs deployed or redeployed in the IATTC Convention Area beginning on January 1, 2025 and on January 1, 2026, respectively.

Given the differences in the designs and materials used by each vessel for FADs, there is variation in costs. The availability of supplies can also vary and can have an impact on the cost. Some owners and operators of U.S. purse seine vessels have been experimenting with non-entangling and biodegradable FAD designs for several years and are already familiar with costs and construction of non-entangling and biodegradable FADs. During the IATTC's seventh meeting of the ad hoc working group on FADs in 2023, the IATTC scientific staff presented data on trials of non-entangling and biodegradable FAD prototypes paired with traditional FADs. The trials found the average catch rate for non-entangling and biodegradable FAD prototypes were comparable to traditional FADs, suggesting no substantial change in attracting target stocks. Furthermore, the IATTC trials showed that the lifespan ( i.e., the “operational” life) of traditional FADs and non-entangling and biodegradable prototypes were similar. At the 2019 IATTC FAD working group meeting, the International Seafood Sustainability Foundation (ISSF) presented and reported that the range of costs for non-entangling biodegradable FADs ranged from $180 to $450 depending on the design. In comparison, ISSF reported traditional FADs currently being used range from $250 to $900. Replacing and redeploying FADs is considered routine by large purse seine vessels, regardless of design type. NMFS does not expect the transition to the proposed FAD designs to reduce profitability of the fishery.

No disproportionate impacts between small and large businesses are expected. The proposed action to impose restrictions on FAD designs is not expected to change the fishing behavior of the U.S. fleet.

In summary, the proposed action is not expected to substantially change the typical fishing practices of affected vessels. Any impact to the income of U.S. vessels is expected to be minor. Therefore, NMFS has determined that the action is not expected to have a significant economic impact on a substantial number of small entities, or a disproportionate economic impact on the small entities relative to the large entities. Given these conclusions, 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. Amend § 300.21 by adding definitions, in alphabetical order, for “biodegradable” and “non-entangling FAD” to read as follows:

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

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

5. Amend § 300.28 by revising the introductory text of paragraph (f), by adding paragraph (f)(3), by revising paragraph (g), and by adding paragraph (h) to read as follows: