[Federal Register Volume 86, Number 214 (Tuesday, November 9, 2021)]
[Proposed Rules]
[Pages 62137-62140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24513]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 211104-0226]
RIN 0648-BK70
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Resources of the Gulf of Mexico; Requirement for a Descending
Device or Venting Tool
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to clarify terms used in the Direct
Enhancement of Snapper Conservation and the Economy through Novel
Devices Act of 2020 (Descend Act). Section 3 of the Descend Act
requires commercial and recreational fishermen to have a descending
device or a venting tool on the vessel and ready for use when fishing
for federally managed reef fish species in Gulf of Mexico (Gulf)
Federal waters. The purpose of this proposed rule is to clarify the
statutory definitions of descending device and venting tool.
DATES: Written comments on the proposed rule must be received by
December 9, 2021.
ADDRESSES: You may submit comments on the proposed rule, identified by
``NOAA-NMFS-2021-0100,'' by either of the following methods:
Electronic submission: Submit all electronic comments via
the Federal e-Rulemaking Portal. Go to http://www.regulations.gov and
enter ``NOAA-NMFS-2021-0100'' in the Search box. Click the ``Comment''
icon, complete the required fields, and enter or attach your comments.
Mail: Submit all written comments to Peter Hood, NMFS
Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL
33701.
Instructions: Comments sent by any other method, to any other
address or
[[Page 62138]]
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
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 required fields if you wish to remain
anonymous.
Electronic copies of the Descend Act and the Regulatory Flexibility
Act (RFA) analysis for this proposed rule may be obtained from
www.regulations.gov or the NMFS Southeast Regional Office website at
https://www.fisheries.noaa.gov/action/descending-device-and-venting-tool-direct-enhancement-snapper-conservation-and-economy.
FOR FURTHER INFORMATION CONTACT: Peter Hood, NMFS Southeast Regional
Office, telephone: 727-824-5305, or email: [email protected].
SUPPLEMENTARY INFORMATION: On January 13, 2021, the majority of the
Descend Act became effective with the exception of section 3, which
becomes effective on January 13, 2022. Section 3 of the Descend Act
amends the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act) by adding section 321, titled ``Required
possession of descending devices.'' Section 321 of the Magnuson-Stevens
Act requires fishermen on commercial vessels, charter vessels and
headboats (for-hire vessels), and private recreational vessels to have
a descending device or venting tool rigged and ready to use when
fishing for Gulf reef fish in Federal waters. This proposed rule would
clarify the statutory definitions of descending device and venting
tool, which are devices designed to help reduce post-release mortality
of fish from the effects of barotrauma.
Gulf reef fish are those fish included in the Fishery Management
Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). A list of
Gulf reef fish can be found in Table 3 of Appendix A to 50 CFR part
622--Species Tables; Gulf Reef Fish, https://www.ecfr.gov/current/title-50/chapter-VI/part-622/appendix-Appendix%20A%20to%20Part%20622.
For purposes of management of under the FMP, Federal waters in the Gulf
begin seaward of 9 nautical miles (16.7 km) from the coast off all the
Gulf States (Pub. L. 114-113, December 18, 2015, and Pub. L. 115-31,
May 5, 2017).
Barotrauma in fish is an injury caused by the expansion of gas
inside a fish from the rapid pressure decrease that may occur when a
fish is retrieved from depth. Barotrauma generally occurs when
retrieving fish from depths of 90 ft (27.4 m) or greater, though it can
occur in waters as shallow as approximately 33 ft (10 m) deep. The
internal gases fill the abdomen and the fish may be unable to swim back
down to the catch depth. Signs of barotrauma in fish include a
distended abdomen, bulging eyes, an everted stomach, and bubbling under
the scales. Fish experiencing barotrauma often have difficulty
returning to deeper water or float on the surface, which makes them
more vulnerable to predation from dolphins, sharks and other fish, and
seabirds. Fishermen can help reduce mortality to fish they release by
using a descending device or a venting tool when barotrauma is
affecting a fish that has been caught. A descending device lowers the
fish back to depth where internal gases recompress and the fish can be
released. A venting tool can release gases in a fish's abdomen at the
surface allowing the fish to swim unaided back to depth.
The Descend Act states that the term ``venting tool'' has the
meaning given to it by the Gulf Council. The Gulf Council defines the
term venting tool in its Policy on the Use of Venting Tools and
Descending Devices as a sharpened, hollow instrument capable of
penetrating the abdomen of a fish to release the excess gases
accumulated in body cavity. The definition also indicates a device that
is not hollow, such as a knife or ice pick, is not a venting tool and
will cause additional damage to a fish.
The Gulf Council previously required the use of a venting tool for
Gulf reef fish in Amendment 27 to the FMP and the final rule
implementing the amendment added a definition of ``venting device'' to
the regulations (73 FR 5117, January 29, 2008). The term ``venting
device'' means, ``a device intended to deflate the abdominal cavity of
a fish to release the fish with minimum damage.'' 50 CFR 622.2. The
Gulf Council and NMFS subsequently removed the requirement to use a
``venting tool,'' the term used in the August 2, 2013, final rule, for
several reasons (78 FR 46820), but the regulations at 50 CFR 622.2
retain the definition of venting device. This proposed rule would
clarify that the applicable Gulf Council definition is the definition
in its Policy on the Use of Venting Tools and Descending Devices.
The Descend Act defines the term descending device as an instrument
that will release fish at a depth sufficient for the fish to be able to
recover from the effects of barotrauma; it is a weighted hook, lip
clamp, or box that will hold the fish while it is lowered to depth, or
another device determined to be appropriate by the Secretary of
Commerce (Secretary); and is capable of releasing the fish
automatically, releasing the fish by actions of the operator of the
device, or allowing the fish to escape on its own. This proposed rule
would clarify that the depth sufficient for a fish to be able to
recover from the effects of barotrauma is the depth at which the fish
was caught and specify the minimum weight and minimum length of line
required to be consistent with the current regulatory definition of
``descending device'' at 50 CFR 622.188(a)(4). The regulations in
section 622.188(a)(4) were put in place by NMFS in 2020 to implement
the South Atlantic Fishery Management Council's Regulatory Amendment 29
to the Fishery Management Plan for the Snapper-Grouper Fishery of the
South Atlantic (85 FR 36166, June 15, 2020). Those regulations require
a descending device be on board a vessel and be ready for use while
fishing for or possessing South Atlantic snapper-grouper.
Management Measures Contained in This Proposed Rule
Consistent with the requirement in the Descend Act, this proposed
rule would require a descending device or a venting tool on the vessel
that is rigged and ready for use while fishing is occurring. This
proposed rule would also clarify the statutory definitions of
descending device and venting tool to assist Gulf reef fish fishermen
in complying with the statutory requirement.
Descending Device
This proposed rule would define a descending device as a device
capable of releasing the fish at the depth from which the fish was
caught, and would specify that the device must use a minimum of a 16-
ounce (454-gram) weight and a minimum of a 60-ft (15.2-m) length of
line. A 16-ounce weight is available at many tackle shops and is heavy
enough to descend a majority of Gulf reef fish subject to barotrauma.
However, using more weight would help to descend a large fish or where
currents are strong. NMFS proposes the 60-ft (18.3-m) minimum length
for the line attached to a descending device to ensure fish are
released at a minimum depth of 50 ft (15.2 m) while someone using the
descending device is standing
[[Page 62139]]
on the deck of a vessel, and to account for possible ocean currents or
swells. Using a line long enough to release a fish at the depth from
which it was caught will best ensure that the fish can recover from the
effects of barotrauma.
These proposed minimum specifications are currently required for
commercial and recreational fishermen in the South Atlantic snapper-
grouper fishery. NMFS proposes the same specifications for a descending
device in the Gulf reef fish fishery to increase the likelihood of
compliance by fishermen who may fish in both the Gulf and South
Atlantic, and to aid with enforcement.
As specified in the Descend Act, a descending device may attach to
the fish's mouth, through the fish's mouth and gill plate, or it may be
a container that will retain the fish while it is lowered to depth.
Operating a descending device can vary between types but the device
must be capable of releasing the fish at depth automatically, by
actions of the device operator, or by allowing the fish to escape on
its own when at depth.
Venting Tool
This proposed rule would define a venting tool consistent with the
Gulf Council's policy and remove the term ``venting device'' from the
regulations. A venting tool must be capable of penetrating the abdomen
of a fish to release the excess gases accumulated in body cavity when a
fish is retrieved from depth. Further, a venting tool must be a
sharpened, hollow instrument that allows air to escape, such as a
hypodermic syringe with the plunger removed. A 16-gauge needle, which
has an outside diameter of 0.065 inches (1.65 mm), is the minimum
diameter hollow tube that must be used. Gulf reef fish fishermen may
also choose to use a larger diameter hollow needle because it will
allow more air to escape from a fish rapidly. Fishermen must not use a
tool that is not hollow, such as a knife or an ice pick, to vent a
fish. A knife or other non-hollow tube is not a venting tool and its
use would cause further injury to a fish.
While the Descend Act and this proposed rule would allow Gulf reef
fish fishermen to choose whether to carry a descending device or
venting tool on a vessel, there is nothing that would prevent fishermen
from carrying both types of devices. Fishermen may find that they favor
a certain device for individual situations.
Expiration of Requirements
The requirement in section 3 of Descend Act expires 5 years after
its enactment. Therefore, the provisions contained in this proposed
rule would also end after January 13, 2026, unless the Gulf Council or
NMFS take further action to retain any of the regulatory provisions.
Classification
NMFS is issuing this proposed rule pursuant to section 305(d) of
the Magnuson-Stevens Act. Pursuant to section 305(d), this action is
necessary to clarify the statutory definitions in section 3 of the
Descend Act, which adds new section 321 to the Magnuson-Stevens Act
that affects persons fishing for Gulf reef fish species. The NMFS
Assistant Administrator has determined that this proposed rule is
consistent with the Descend Act, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration
after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce has
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 factual basis for this determination follows.
A description of this proposed rule, why it is being considered,
and the objectives of this proposed rule are contained in the
SUPPLEMENTARY INFORMATION section of the preamble. The Magnuson-Stevens
Act provides the statutory basis for this proposed rule.
This proposed rule would apply to all federally permitted
commercial vessels and for-hire vessels, as well as private or rental
recreational vessels that are fishing for Gulf reef fish in Gulf
Federal waters. The RFA does not consider recreational anglers to be
small entities, so they are outside the scope of this analysis and only
the impacts on commercial and for-hire fishing businesses will be
discussed.
As of February 23, 2021, there were 831 valid or renewable limited-
access permits for Gulf reef fish. On average from 2015 through 2019,
there were 543 federally permitted commercial vessels each year with
reported landings of Gulf reef fish. Their average annual vessel-level
gross revenue from all species harvested for 2015 through 2019 was
approximately $121,500 (2020 dollars) and Gulf reef fish accounted for
approximately 94 percent of this revenue. The maximum annual revenue
from all species reported by a single one of the commercial vessels
that landed Gulf reef fish from 2015 through 2019 was approximately
$2.4 million (2020 dollars).
On February 23, 2021, there were 1,306 vessels with a valid or
renewable charter vessel/headboat permit for Gulf reef fish (including
historical captain permits). Although the charter vessel/headboat
permit application collects information on the primary method of
operation, the permit itself does not identify the permitted vessel as
either a charter vessel or a headboat and vessels may operate in both
capacities. The average charter vessel is estimated to receive
approximately $91,000 (2020 dollars) in annual revenue; the average
headboat is estimated to receive approximately $275,000 in annual
revenue.
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (see 50 CFR 200.2). A business primarily
engaged in commercial fishing (NAICS code 11411) is classified as a
small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $11 million for all its
affiliated operations worldwide. All of the commercial fishing
businesses directly regulated by this proposed rule are believed to be
small entities based on the NMFS size standard.
The SBA has established size standards for all major industry
sectors in the U.S. including for-hire businesses (NAICS code 487210).
A business primarily involved in the for-hire fishing industry is
classified as a small business if it is independently owned and
operated, is not dominant in its field of operation (including its
affiliates), and has combined annual receipts not in excess of $8
million for all its affiliated operations worldwide. All of the for-
hire fishing businesses directly regulated by this proposed rule are
believed to be small entities based on the SBA size criteria.
No other small entities that would be directly affected by this
proposed rule have been identified.
This proposed rule would not establish any new reporting or record-
keeping requirements. It would, however, reiterate the requirements of
the Descend Act and add clarity to the definitions of a descending
device or venting tool. Per the requirements of the Descend Act, for a
person on a vessel used to fish for Gulf reef fish in the Gulf Federal
waters, a descending device or a venting tool that is rigged and ready
for use while fishing is occurring must
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be on the vessel. This statutory requirement will remain in effect
regardless of the outcome of this proposed rule. No special
professional skills would be necessary for compliance with this
proposed rule.
Data on how many commercial and for-hire vessels currently own a
suitable descending device or venting tool are not available. Again,
all regulated small entities would need to have or obtain such
descending devices or venting tools regardless of the outcome of this
proposed rule. The estimated cost per vessel of purchasing a compliant
descending device, based on the lowest price retail option for
descending devices, plus the cost of a qualifying weight and line,
would be approximately $19 (2020 dollars). The estimated cost to
purchase a compliant venting tool would be $7 (2020 dollars). Either
option would represent well less than one percent of average annual per
vessel revenue for affected small entities. Because there is no
requirement for these tools to be put into use, only for them to be on
board and rigged for use while fishing for Gulf reef fish, there are no
additional implicit or explicit costs associated with this proposed
rule. In summary, this proposed rule would not be expected to have a
significant economic impact on a substantial number of small entities.
The information provided above supports a determination that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. As a result, an initial
regulatory flexibility analysis is not required and none has been
prepared.
No duplicative, overlapping, or conflicting Federal rules have been
identified. In addition, this proposed rule contains no information
collection requirements under the Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 622
Charter vessel, Commercial, Fisheries, Fishing, Gulf of Mexico,
Headboat, Recreational, Reef fish.
Authority: 16 U.S.C. 1801 et seq.
Dated: November 4, 2021.
Carrie Robinson,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is
proposed to be amended as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH
ATLANTIC
0
1. The authority citation for part 622 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 622.2 Definitions and acronyms. [Amended]
0
2. In Sec. 622.2, remove the definition of venting device.
0
3. In Sec. 622.30, revise the introductory text and add paragraph (c)
to read as follows:
Sec. 622.30 Required fishing gear.
For a person on board a vessel to fish for Gulf reef fish in the
Gulf EEZ, the following fishing gear must be on the vessel and such
person must use the gear as specified in paragraphs (a) and (b) of this
section.
* * * * *
(c) Gear required by the DESCEND Act of 2020. For a person on a
vessel to fish for Gulf reef fish in the Gulf EEZ, a descending device
or a venting tool that is rigged and ready for use while fishing is
occurring must be on the vessel. The requirements in this paragraph (c)
are effective until January 14, 2026.
(1) Descending device. A descending device is an instrument capable
of releasing a fish at the depth from which the fish was caught.
(i) The descending device must be a weighted hook, lip clamp, or
container that will hold the fish while it is lowered to depth. The
device must be capable of releasing the fish automatically, by actions
of the operator of the device, or by allowing the fish to escape on its
own when at depth.
(ii) The descending device must use a minimum of a 16-ounce (454-
gram) weight and a minimum of a 60-ft (15.2-m) length of line.
(2) Venting tool. A venting tool is a device capable of penetrating
the abdomen of a fish to release the excess gases accumulated in body
cavity when a fish is retrieved from depth. A venting tool must be a
sharpened, hollow instrument that allows air to escape, such as a
hypodermic syringe with the plunger removed. A 16-gauge needle, which
has an outside diameter of 0.065 inches (1.65 mm), is the minimum
diameter hollow tube that must be used. A larger diameter hollow needle
is preferred to allow more air to escape from a fish rapidly. A device
that is not hollow, such as a knife or an ice pick, is not a venting
tool and will cause additional damage to a fish.
[FR Doc. 2021-24513 Filed 11-8-21; 8:45 am]
BILLING CODE 3510-22-P