Rule2022-00720
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
Primary source
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Published
January 14, 2022
Effective
February 14, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS implements 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 final rule is to clarify the definitions of descending device and venting tool in the Descend Act.
Full Text
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<title>Federal Register, Volume 87 Issue 10 (Friday, January 14, 2022)</title>
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[Federal Register Volume 87, Number 10 (Friday, January 14, 2022)]
[Rules and Regulations]
[Pages 2355-2358]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00720]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 220111-0009]
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: Final rule.
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SUMMARY: NMFS implements 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 final rule is to clarify the
definitions of descending device and venting tool in the Descend Act.
DATES: This final rule is effective February 14, 2022.
ADDRESSES: Electronic copies of the Descend Act and the Regulatory
Flexibility Act (RFA) analysis for this proposed rule may be obtained
from <a href="http://www.regulations.gov">www.regulations.gov</a> or the NMFS Southeast Regional Office website
at <a href="https://www.fisheries.noaa.gov/action/descending-device-and-venting-tool-direct-enhancement-snapper-conservation-and-economy">https://www.fisheries.noaa.gov/action/descending-device-and-venting-tool-direct-enhancement-snapper-conservation-and-economy</a>.
FOR FURTHER INFORMATION CONTACT: Peter Hood, NMFS Southeast Regional
Office, telephone: 727-824-5305, or email: <a href="/cdn-cgi/l/email-protection#8bfbeeffeef9a5e3e4e4efcbe5e4eaeaa5ece4fd"><span class="__cf_email__" data-cfemail="c7b7a2b3a2b5e9afa8a8a387a9a8a6a6e9a0a8b1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On January 13, 2021, the majority of the
Descend Act became effective with the exception of section 3, which
became 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.
On November 9, 2021, NMFS published a proposed rule in the Federal
Register to clarify the terms used in the Descend Act and requested
public comment through December 9, 2021 (86 FR 62137). The proposed
rule provides additional background and rationale for the actions
contained in this final rule.
This final rule clarifies the statutory definitions in the Descend
Act 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 (Reef Fish 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, <a href="https://www.ecfr.gov/current/title-50/chapter-VI/part-622/appendix-Appendix%20A%20to%20Part%20622">https://www.ecfr.gov/current/title-50/chapter-VI/part-622/appendix-Appendix%20A%20to%20Part%20622</a>. For purposes of management under the
Reef Fish 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 is an injury that may occur to fish caused by the
expansion of gas inside a fish from the rapid decrease of water
pressure that occurs when a fish is retrieved from 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 defines the term ``descending device'' as an
instrument that will release a fish at a depth sufficient for the fish
to be able to recover from the effects of barotrauma; 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 by allowing the fish to escape on its own. This final rule
clarifies 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 specifies 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 paragraph
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 (Snapper-Grouper FMP) (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.
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 the 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. This final rule clarifies
that this definition of venting tool applies to the Descend Act
requirements.
Management Measures Contained in This Final Rule
Consistent with the requirement in the Descend Act, this final rule
requires a descending device or a venting tool on the vessel that is
rigged and ready for use while fishing for Gulf reef fish is occurring.
This final rule also clarifies the statutory definitions of descending
device and venting tool to assist Gulf reef fish fishermen in complying
with the statutory requirement. NMFS is not approving or determining
the sufficiency of any specific devices through this final rule.
Descending Device
This final rule defines a descending device as a device capable of
releasing a fish at the depth from which the fish was caught, and
specifies that the device must use a minimum of a 16-
[[Page 2356]]
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, or may be
homemade, 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 specifies in this final
rule that a 60-ft (18.3-m) minimum length for the line attached to a
descending device is required to ensure fish are released at a minimum
depth of 50 ft (15.2 m) while someone using the descending device is
standing 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 where it was caught, which may be more than 50 ft (15.2 m)
in depth, will best ensure that the fish can recover from the effects
of barotrauma.
These minimum specifications are also required for commercial and
recreational fishermen in the South Atlantic snapper-grouper fishery.
In this rule, NMFS implements 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 box (without specific dimensions or shape) 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.
If a Gulf reef fish fisherman chooses to carry a descending device
to comply with the Descend Act and this final rule, there is no
requirement to use a rod and reel, or any other specific method or
material, to attach to the descending device and weight and then
descend a fish. Although a rod and reel may be one useful way to
descend a fish if the minimum line length and weight specifications are
met, the Descend Act and this final rule provide flexibility for Gulf
reef fish fishermen to choose the materials and methods that work best
for them to descend a fish.
Venting Tool
This final rule defines a venting tool consistent with the Gulf
Council's policy and removes the term ``venting device'' from the
regulations at 50 CFR part 622. 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 a standard 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 final rule allow Gulf reef fish
fishermen to choose whether to carry a descending device or venting
tool on a vessel, there is nothing that prevents fishermen from
carrying both types of devices. Fishermen may find that they favor a
certain device for individual situations. More information on the
Descend Act and links to information on descending devices and venting
tools may be found at <a href="https://www.fisheries.noaa.gov/action/descending-device-and-venting-tool-direct-enhancement-snapper-conservation-and-economy">https://www.fisheries.noaa.gov/action/descending-device-and-venting-tool-direct-enhancement-snapper-conservation-and-economy</a>.
Expiration of Requirements
The requirement in section 3 of the Descend Act expires 5 years
after its enactment. Therefore, the provisions contained in this final
rule will also end after January 13, 2026, unless the Gulf Council or
NMFS take further action to retain any of the regulatory provisions.
Comments and Responses
NMFS received 29 public comments on the proposed rule from
individuals, three recreational fishing advocacy groups, and a
commercial fishing advocacy group. Most comments were directed to the
requirement in the Descend Act to possess a descending device or
venting tool, and some of those comments asked NMFS to make an
exception for spearfishing trips. These comments were outside the scope
of the proposed rule, and therefore, are not addressed further in this
final rule. NMFS acknowledges the comments in favor of all or part of
the proposed rule, and agrees with them. Comments seeking clarification
or that are opposed to the proposed rule are grouped as appropriate and
summarized below, each followed by NMFS' respective response.
Comment 1: NMFS should clarify what ``rigged and ready for use when
fishing'' means with respect to the descending device and venting tool
requirement.
Response: As previously explained, descending devices and venting
tools are used to help reduce post-release mortality of fish caused by
barotrauma. To be effective, fishermen must have this equipment ready
to use with as little delay as possible. Therefore, NMFS expects
fishermen who choose to carry a descending device to have the device
attached to a line with the weight, and be ready to descend a fish as
soon as fishing activities begin. Fishermen who choose to carry a
venting tool on their vessel must have the venting tool readily
available for immediate use as soon as fishing activities begin.
Comment 2: Explain why NMFS is requiring a 16-ounce minimum weight
when less weight can also work to descend fish.
Response: As stated in the proposed rule, 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. In addition,
requiring this minimum weight will make these regulations consistent
with the regulations in 50 CFR 622.188(a)(4), which were put in place
by NMFS in 2020 to implement the South Atlantic Fishery Management
Council's (South Atlantic Council) Regulatory Amendment 29 to the
Fishery Management Plan for the Snapper-Grouper Fishery of the South
Atlantic (85 FR 36166, June 15, 2020). NMFS expects consistent
requirements to increase the likelihood of compliance by fishermen who
may fish in both the Gulf and South Atlantic, and to aid with
enforcement.
Comment 3: A knife is a preferred tool to vent fish and other
venting tools are not needed. Venting tools tend to clog up after use.
Response: A knife is not a hollow tool, so using a knife may not
allow gases to escape the fish's abdomen, thereby preventing the fish
to vent. Additionally, a knife can be misused by inserting it in an
extruded fish's stomach, anus, or eyes to release internal gases.
Although someone using a knife as a venting tool may have good
intentions, using a knife or other non-hollow instrument to attempt to
vent a fish is more likely to cause greater injury to a fish than using
a venting tool as defined in this rule. A venting tool can be cleaned
of fish tissue or scales by blowing in the non-sharpened end or
inserting a thin wire to remove debris.
Comment 4: The term ``box'' in the definition of a descending
device should be changed to container because
[[Page 2357]]
box implies a specific shape and could limit innovations in design that
for example could use tubes or irregular shapes as part of the design.
Response: Although the term ``box'' is in the Descend Act's
definition of descending device, the shape or dimensions of the box are
not prescribed, and the definition of a descending device in this rule
states it ``must be a weighted hook, lip clamp, or container that will
hold the fish while it is lowered to depth.'' Therefore, as long as the
device can retain the fish until the fish can be released at depth by
actions of the device operator or by the fish swimming away on its own,
fishermen may choose the shape or dimensions of a container-type
descending device that works best for effectively descending fish.
Comment 5: NMFS should refrain from being overly descriptive in the
descending gear definitions and allow enforcement personnel to apply
their experience and judgement to evaluate if devices can fulfill the
requirements of this regulation.
Response: The Descend Act contains a detailed definition of a
descending device. It is not NMFS' intent to make that definition more
prescriptive and NMFS is not approving or determining the sufficiency
of any devices through this final rule. This rule provides the minimum
weight and length of line that must be used with a descending device to
be consistent with the definition implemented for the South Atlantic
snapper-grouper fishery, which will assist both fishermen and
enforcement. As long as a descending device, whether purchased or
homemade, is capable of releasing the fish at the depth at which it was
caught and meets the minimum specifications in this rule as well as
meets the definition in the Descend Act, the descending device complies
with the requirements when fishing for Gulf reef fish.
Comment 6: Descending devices and venting tools do not work to
reduce discard mortality, particularly if dolphins and sharks prey upon
discarded fish. In addition, the science supporting the benefits of
these devices is questionable for fish exhibiting signs of barotrauma.
Response: The South Atlantic Council's Regulatory Amendment 29 to
the Snapper-Grouper FMP summarizes scientific studies that show the
positive effects from the use of these devices on survival of fish
species suffering from barotrauma. Those benefits have been shown for
both descending devices and venting tools. With respect to predators,
returning fish to depth quickly using a descending device or allowing a
fish to swim on its own after venting decreases the likelihood of a
released fish being eaten by a predator than if the same fish remained
floating at the surface.
Comment 7: Descending devices are superior to venting tools because
venting tools can get clogged and are misused by inexperienced
fishermen.
Response: The Descend Act and this final rule do not require a
specific device type, but allow fishermen targeting Gulf reef fish to
choose between carrying a descending device or a venting tool on the
vessel and ensuring that one of those devices is ready to use when
fishing is occurring. Therefore, a fisherman can select the device they
are most comfortable with using and fits their fishing needs. Both
devices, when used properly, can increase the likelihood that a
released fish survives.
Comment 8: NMFS should have a strong outreach effort to educate
people on how to use descending devices and venting tools.
Response: NMFS will continue to work with the Gulf Council and
other partners to develop and distribute information on descending
devices and venting tools. NMFS already has links to information on
using descending devices and venting tools posted on this website:
<a href="https://www.fisheries.noaa.gov/action/descending-device-and-venting-tool-direct-enhancement-snapper-conservation-and-economy">https://www.fisheries.noaa.gov/action/descending-device-and-venting-tool-direct-enhancement-snapper-conservation-and-economy</a>. The website
links hosted by NMFS and other partners contain detailed explanations
and videos on how to properly descend and vent fish.
Classification
NMFS is issuing this final 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 final rule is
consistent with the Descend Act, other provisions of the Magnuson-
Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Magnuson-Stevens Act provides the legal basis for this final
rule. No duplicative, overlapping, or conflicting Federal rules have
been identified. In addition, no new reporting and record-keeping
requirements are introduced by this final rule. This final rule
contains no information collection requirements under the Paperwork
Reduction Act of 1995. A description of this final rule, why it is
being considered, and the purposes of this final rule are contained
earlier in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this
final rule.
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 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. No comments were received
regarding this certification and NMFS has not received any new
information that would affect its determination. As a result, a final
regulatory flexibility analysis was not required and none was prepared.
List of Subjects in 50 CFR Part 622
Charter vessel, Commercial, Fisheries, Fishing, Gulf of Mexico,
Headboat, Recreational, Reef fish.
Dated: January 11, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is 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 [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 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.
[[Page 2358]]
(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 the
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. 2022-00720 Filed 1-13-22; 8:45 am]
BILLING CODE 3510-22-P
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