[Federal Register Volume 87, Number 189 (Friday, September 30, 2022)]
[Proposed Rules]
[Pages 59386-59388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21135]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 220922-0195]
RIN 0648-BJ04


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Omega Electronic Mesh Measurement Gauge Method for 
Measuring Net Mesh Size

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: This rulemaking proposes to add the Omega net mesh measurement 
gauge as a permissible device for net mesh measurement and correct 
regulatory references to gear restrictions. This action is required to 
allow the use of the Omega gauge as another method for measuring and 
enforcing net mesh size. Adoption of the Omega gauge, a handheld 
electronic device, is intended to improve the efficiency, safety, and 
cost-effectiveness of enforcement boardings at-sea.

DATES: Written comments must be received on or before October 31, 2022.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2021-0081, 
by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov and enter ``NOAA-NMFS-2021-0081'' in the Search 
box. Click on the ``Comment'' icon, complete the required fields, and 
enter or attach your comments.
    Instructions: All comments that are timely and properly submitted 
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. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). 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 us.

FOR FURTHER INFORMATION CONTACT: Spencer Talmage, Fishery Management 
Specialist, phone: (978) 281-9232; email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Under section 305(d) of the Magnuson-Stevens Fishery Conservation 
and Management Act, the Secretary of Commerce is authorized to 
implement regulations that are necessary to carry out any fishery 
management plan or amendment. We have preliminarily determined that the 
adoption of the Omega electronic net mesh measurement gauge (Omega 
gauge) as an enforcement tool to measure net mesh for trawl gear will 
improve the safety, efficiency, and cost-effectiveness of enforcement 
boardings at-sea. The Omega gauge will assist in the enforcement of 
gear requirements for all Fishery Management Plans (FMPs) administered 
by the Greater Atlantic Regional Fisheries Office, but is otherwise 
administrative and will not result in any changes to fishing behavior 
or obligations to the fishing industry. We are proposing to amend the 
regulations in Sec. Sec.  648.51(a)(2)(ii), 648.51(b)(4)(v), 
648.80(f)(2), and 648.108(a)(2) to add the Omega gauge.
    The Omega gauge is an automated, handheld electronic device for 
measuring net mesh size. To take a measurement, two metal prongs at the 
end of the device are inserted into a net mesh, at which point the 
prongs slowly separate with a standardized, pre-set force. Once the 
prongs can no longer separate, they stop, and produce the measurement. 
The Omega gauge has a measuring range of 0.4-11.81 inches (1-30 cm), 
and exerts a pressure of 125 Newtons (N) (12.75 kg) when used to 
measure mesh greater than or equal to 2.17 inches (5.51 cm) and a 
pressure of 50 N (5.10 kg) when used to measure mesh less than 2.17 
inches (5.51 cm). The Omega gauge shows the results of completed 
measurements to the user via an electronic display, but also has the 
capability to record and store measurements internally. These records 
can be exported to an electronic file for later use. The mesh size 
produced by this device would be based on the same process as currently 
specified; it would be equal to the average of the measurements of 20 
consecutive meshes for nets having 75 or more meshes, and 10 
consecutive meshes for nets having fewer than 75 meshes.
    The current methodology for measuring trawl net mesh size uses a 
wedge-shaped gauge with a taper of 0.79 inches (2 cm) in 3.15 inches (8 
cm) and a thickness of 0.09 inches (2.3 mm). To measure net mesh size 
of less than 4.72 inches (120 mm), the wedge gauge is attached to a 5-
kg weight. For nets 4.72 inches (120 mm) or larger, the gauge is 
attached to an 8-kg weight. The wedge is inserted into the mesh being 
measured under the pressure or pull of its attached weight, and the 
mesh size is equal to the average of the measurements of 20 consecutive 
meshes for nets having 75 or more meshes, and 10 consecutive meshes for 
nets having fewer than 75 meshes.
    Between 2016 and 2018, the United States Coast Guard (USCG) 
conducted shore-side and operational comparison studies between the 
wedge and Omega gauges.
    At a meeting of the New England Fishery Management Council's Joint 
Enforcement Committee and Advisory Panel in 2018, USCG representatives 
presented the results of their studies and demonstrated the operation 
of the Omega gauge. These studies showed that the Omega gauge 
accurately and consistently measured the net meshes. In addition, the 
USCG stated that the Omega gauge is faster, easier to use, and more 
precise than the traditional wedge gauge.
    Following the recommendation of the Joint Enforcement Committee and 
Advisory Panel, the New England Council recommended to us that the 
Omega gauge be adopted for net mesh size measurement. Subsequently, the 
NOAA Office of Law Enforcement and Office of General Counsel reviewed 
the study results, operations manual, and other information and 
determined the Omega gauge is suitable for net mesh measurements.
    On December 13, 2021, NMFS presented information to the Mid-
Atlantic Fishery Management Council regarding the Omega gauge and the 
ongoing development of rulemaking to adopt the Omega gauge. The Mid-
Atlantic Council had not been properly informed of the development of 
this rulemaking, and so the December presentation corrected that error. 
The Mid-Atlantic Council subsequently passed a motion by consensus to 
support the development of rulemaking to adopt the Omega gauge.

[[Page 59387]]

Background

    We are also proposing to amend the regulations at Sec. Sec.  
648.80(c)(2)(i), 648.80 (c)(2)(ii) and 648.125(a)(2) to correct an 
incorrect cross reference. The cross reference currently directs 
readers to minimum fish sizes in the summer flounder fishery at Sec.  
648.104, but is instead intended to refer to gear restrictions in that 
fishery at Sec.  648.108(a)(2). The regulations that are proposed to be 
amended discuss gear restrictions for vessels using trawls, and so the 
erroneous cross references that do not direct readers to the correct 
information causes difficulty to public understanding of gear 
requirements and restrictions.

Classification

    The National Marine Fisheries Service (NMFS) Assistant 
Administrator has made a preliminary determination that this proposed 
rule is consistent with section 305(d) and other provisions of the 
Magnuson-Stevens Act, and other applicable law. In making the final 
determination, we will consider the data, views, and comments received 
during the public comment period, subject to further consideration 
after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual determination for this determination follows.
    For purposes of the Regulatory Flexibility Act, NMFS 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. The determination 
of whether the entity is large or small is based on the average annual 
revenue for the most recent 3 years for which data are available (in 
this case, from 2016 through 2018).
    Any vessel fishing in the waters of the United States may be 
subject to boarding by the USCG or NOAA OLE for the enforcement of 
fishing and other regulations. This boarding may include measurement of 
net mesh size by the wedge-shaped gauge. Therefore, entities holding 
one or more fishing permits, and allowed the use of nets that may be 
measured by the wedge-shaped gauge, have the potential to be directly 
impacted by this action. According to the commercial database, there 
were 1,174 entities that had at least one valid permit during 2018, the 
last year for which affiliation information is available. Of these, 12 
were classified as large with average annual gross sales of $23.2 
million and 1,162 were classified as small with average annual gross 
sales of $591.8 thousand. According to gear codes found in Vessel Trip 
Report records, during 2018, 10 of the 12 large entities took at least 
one trip where the gear used could be measured via use of the Omega 
gauge. On average, these entities took 170 trips that would be affected 
by the proposed action. Similarly, during 2018 there were a total of 
524 regulated small entities that took at least one trip that would be 
affected by the proposed action where the average number of affected 
trips during 2018 was 57.
    This proposed rule would not have a significant economic impact on 
a substantial number of small entities. It will not affect fishing 
operations, behavior, or effort. It would not change the minimum mesh 
size for any fishery or require any fishermen to purchase new gear. The 
only economic cost associated with the proposed rule would be to law 
enforcement agencies that opt to purchase the Omega gauge for use in 
enforcement activity. Additionally, because studies conducted by the 
USCG indicate that the Omega gauge is faster and lighter than the wedge 
gauge, it is expected that use of the Omega gauge will result in 
faster, safer, and more efficient boardings at-sea, constituting a 
minor benefit to the affected entities. As a result, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.
    This proposed rule does not contain any collection-of-information 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA), and thus will not be submitted to OMB for 
approval.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: September 23, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq.
0
2. In Sec.  648.51, revise paragraph (a)(2)(ii) and paragraph 
(b)(4)(v), to read as follows:


Sec.  648.51  Gear and Crew Restrictions.

    (a) * * *
    (2) * * *
    (ii) Measurement of mesh size. Mesh size is measured by using an 
electronic Omega gauge or a wedge-shaped gauge. The Omega gauge has a 
measuring range of at least 10-300 mm (0.4 inches-11.81 inches), and 
shall be inserted into the meshes under a pressure or pull of 125 N or 
12.75 kg for mesh greater than or equal to 55 mm (2.17 inches) and 
under a pressure or pull of 50 N or 5.10 kg for mesh less than 55 mm 
(2.17 inches). The wedge shaped gauge, with a taper of 2 cm (0.79 
inches) in 8 cm (3.15 inches) and a thickness of 2.3 mm (0.09 inches), 
shall be inserted into the meshes under a pressure or pull of 5 kg 
(11.02 lb) for mesh size less than 120 mm (4.72 inches) and under a 
pressure or pull of 8 kg (17.64 lb) for mesh size at, or greater than, 
120 mm (4.72 inches). The mesh size is the average of the measurements 
of any series of 20 consecutive meshes for nets having 75 or more 
meshes, and 10 consecutive meshes for nets having fewer than 75 meshes 
when using either the Omega gauge or the wedge-shaped gauge. The mesh 
in the regulated portion of the net is measured at least five meshes 
away from the lacings running parallel to the long axis of the net.
* * * * *
    (b) * * *
    (4) * * *
    (v) Measurement of twine top mesh size. Twine top mesh size is 
measured by using an electronic Omega gauge or a wedge-shaped gauge. 
The Omega gauge has a measuring range of at least 10-300 mm (0.4 
inches-11.81 inches), and shall be inserted into the meshes under a 
pressure or pull of 125 N or 12.75 kg for mesh greater than or equal to 
55 mm (2.17 inches) and under a pressure or pull of 50 N or 5.10 kg for 
mesh less than 55 mm (2.17 inches).

[[Page 59388]]

The wedge shaped gauge, with a taper of 2 cm (0.79 inches) in 8 cm 
(3.15 inches) and a thickness of 2.3 mm (0.09 inches), shall be 
inserted into the meshes under a pressure or pull of 8 kg (17.64 lb). 
The mesh size is the average of the measurements of any series of 20 
consecutive meshes for twine tops having 75 or more meshes, and 10 
consecutive meshes for twine tops having fewer than 75 meshes when 
using either the Omega gauge or the wedge-shaped gauge. The mesh in the 
twine top must be measured along the length of the twine top, running 
parallel to a longitudinal axis, and be at least five meshes away from 
where the twine top mesh meets the rings, running parallel to the long 
axis of the twine top.
* * * * *
0
3. In Sec.  648.80, revise paragraphs (c)(2)(i), (ii), and (f)(2), to 
read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (c) * * *
    (2) * * *
    (i) Vessels using trawls. Except as provided in paragraph 
(c)(2)(iii) of this section, and Sec.  648.85(b)(6), the minimum mesh 
size for any trawl net not stowed and not available for immediate use 
as defined in Sec.  648.2, on a vessel or used by a vessel fishing 
under the NE multispecies DAS program or on a sector trip in the MA 
Regulated Mesh Area, shall be that specified by Sec.  648.108(a), 
applied throughout the body and extension of the net, or any 
combination thereof, and 6.5-inch (16.5-cm) diamond or square mesh 
applied to the codend of the net, as defined in paragraph (a)(3)(i) of 
this section. This restriction does not apply to nets or pieces of nets 
smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq ft (0.81 sq m)), or to 
vessels that have not been issued a NE multispecies permit and that are 
fishing exclusively in state waters.
    (ii) Vessels using Scottish seine, midwater trawl, and purse seine. 
Except as provided in paragraph (c)(2)(iii) of this section, the 
minimum mesh size for any sink gillnet, Scottish seine, midwater trawl, 
or purse seine, not stowed and not available for immediate use as 
defined in Sec.  648.2, on a vessel or used by a vessel fishing under a 
DAS in the NE multispecies DAS program in the MA Regulated Mesh Area, 
shall be that specified in Sec.  648.108(a). This restriction does not 
apply to nets or pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 
m), (9 sq ft (0.81 sq m)), or to vessels that have not been issued a NE 
multispecies permit and that are fishing exclusively in state waters.
* * * * *
    (f) * * *
    (2) All other nets. With the exception of gillnets, mesh size is 
measured by an electronic Omega gauge or a wedge-shaped gauge. The 
Omega gauge has a measuring range of at least 10-300 mm (0.4 inches-
11.81 inches), and shall be inserted into the meshes under a pressure 
or pull of 125 N or 12.75 kg for mesh greater than or equal to 55 mm 
(2.17 inches) and under a pressure or pull of 50 N or 5.10 kg for mesh 
less than 55 mm (2.17 inches). The wedge shaped gauge, with a taper of 
2 cm (0.79 inches) in 8 cm (3.15 inches), and a thickness of 2.3 mm 
(0.09 inches), shall be inserted into the meshes under a pressure or 
pull of 5 kg (11.02 lb) for mesh size less than 120 mm (4.72 inches) 
and under a pressure or pull of 8 kg (17.64 lb) for mesh size at, or 
greater, than 120 mm (4.72 inches).
* * * * *
0
4. In Sec.  648.108, revise paragraph (a)(2), to read as follows:


Sec.  648.108  Summer flounder gear restrictions.

    (a) * * *
    (2) Mesh size is measured by using an electronic Omega gauge or a 
wedge-shaped gauge. The Omega gauge has a measuring range of at least 
10-300 mm (0.4 inches-11.81 inches), and shall be inserted into the 
meshes under a pressure or pull of 125 N or 12.75 kg for mesh greater 
than or equal to 55 mm (2.17 inches) and under a pressure or pull of 50 
N or 5.10 kg for mesh less than 55 mm (2.17 inches). The wedge shaped 
gauge, with a taper of 2 cm (0.79 inches) in 8 cm (3.15 inches), and a 
thickness of 2.3 mm (0.09 inches), shall be inserted into the meshes 
under a pressure or pull of 5 kg (11.02 lb) for mesh size less than 120 
mm (4.72 inches) and under a pressure or pull of 8 kg (17.64 lb) for 
mesh size at, or greater than, 120 mm (4.72 inches). The mesh size is 
the average of the measurements of any series of 20 consecutive meshes 
for nets having 75 or more meshes, and 10 consecutive meshes for nets 
having fewer than 75 meshes, when using either the Omega gauge or the 
wedge-shaped gauge. The mesh in the regulated portion of the net is 
measured at least five meshes away from the lacings, running parallel 
to the long axis of the net.
* * * * *
0
5. In Sec.  648.125, revise paragraph (a)(2), to read as follows:


Sec.  648.125  Scup gear restrictions.

    (a) * * *
    (2) Mesh-size measurement. Mesh sizes will be measured according to 
the procedure specified in Sec.  648.108(a)(2).
* * * * *
[FR Doc. 2022-21135 Filed 9-29-22; 8:45 am]
BILLING CODE 3510-22-P