81_FR_22116 81 FR 22044 - Atlantic Highly Migratory Species; Archival Tag Management Measures

81 FR 22044 - Atlantic Highly Migratory Species; Archival Tag Management Measures

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 72 (April 14, 2016)

Page Range22044-22047
FR Document2016-08535

NMFS is proposing to revise the regulations that currently require persons surgically implanting archival tags in Atlantic highly migratory species (HMS) or externally affixing archival tags to such species to obtain written authorization from NMFS and that require fishermen to report their catches of Atlantic HMS with such tags to NMFS. Archival tags are tags that record scientific information about the migratory behavior of a fish and include tags that are surgically implanted in a fish and tags that are externally affixed, such as pop-up satellite (PSAT) and smart position and temperature tags (SPOT). Specifically, this rule would remove the requirement for researchers to obtain written authorization from NMFS to implant or affix an archival tag but would continue to allow persons who catch a fish with a surgically implanted archival tag to retain the fish while requiring them to return the tag to the person indicated on the tag or to NMFS. The regulation would no longer require the person retaining the fish to submit to NMFS a landing report or make the fish available for inspection and tag recovery by a NMFS scientist, enforcement agent, or other person designated in writing by NMFS. Any persons who land an Atlantic HMS with an externally affixed archival tag would be encouraged to follow the instructions on the tag to return the tag to the appropriate research entity or to NMFS. This action could affect any researchers wishing to place archival tags on Atlantic HMS and any fishermen who might catch such a tagged fish.

Federal Register, Volume 81 Issue 72 (Thursday, April 14, 2016)
[Federal Register Volume 81, Number 72 (Thursday, April 14, 2016)]
[Proposed Rules]
[Pages 22044-22047]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-08535]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 150817722-6304-01]
RIN 0648-BF10


Atlantic Highly Migratory Species; Archival Tag Management 
Measures

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: NMFS is proposing to revise the regulations that currently 
require persons surgically implanting archival

[[Page 22045]]

tags in Atlantic highly migratory species (HMS) or externally affixing 
archival tags to such species to obtain written authorization from NMFS 
and that require fishermen to report their catches of Atlantic HMS with 
such tags to NMFS. Archival tags are tags that record scientific 
information about the migratory behavior of a fish and include tags 
that are surgically implanted in a fish and tags that are externally 
affixed, such as pop-up satellite (PSAT) and smart position and 
temperature tags (SPOT). Specifically, this rule would remove the 
requirement for researchers to obtain written authorization from NMFS 
to implant or affix an archival tag but would continue to allow persons 
who catch a fish with a surgically implanted archival tag to retain the 
fish while requiring them to return the tag to the person indicated on 
the tag or to NMFS. The regulation would no longer require the person 
retaining the fish to submit to NMFS a landing report or make the fish 
available for inspection and tag recovery by a NMFS scientist, 
enforcement agent, or other person designated in writing by NMFS. Any 
persons who land an Atlantic HMS with an externally affixed archival 
tag would be encouraged to follow the instructions on the tag to return 
the tag to the appropriate research entity or to NMFS. This action 
could affect any researchers wishing to place archival tags on Atlantic 
HMS and any fishermen who might catch such a tagged fish.

DATES: Written comments must be received by May 16, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0017, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0017, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Margo Schulze-Haugen, 
Chief, Atlantic HMS Management Division at 1315 East-West Highway, 
Silver Spring, MD 20910.
    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 
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).

FOR FURTHER INFORMATION CONTACT: Larry Redd, Craig Cockrell, or Karyl 
Brewster-Geisz by phone at 301-427-8503.

SUPPLEMENTARY INFORMATION: Atlantic HMS are managed under the 2006 
Consolidated HMS Fishery Management Plan (FMP). Implementing 
regulations at 50 CFR part 635 are issued under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq., and Atlantic Tunas Convention Act 
(ATCA), 16 U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce 
(Secretary) to promulgate regulations, as may be necessary and 
appropriate to implement ICCAT recommendations.
    ``Archival tags'' are defined at Sec.  635.2 as ``a device that is 
implanted or affixed to a fish to electronically record scientific 
information about the migratory behavior of that fish.'' Scientists use 
such tags because they offer a powerful tool for tracking the 
movements, geolocation, and behavior of individual tunas, shark, 
swordfish, or billfishes. Data recovery from some archival tags, 
particularly those that are surgically implanted into the fish, 
requires that fish be re-caught. Other archival tags, such as PSAT and 
SPOT, which are externally affixed to the fish, are able to transmit 
the information remotely and do not require the fish to be re-caught 
nor do researchers expect the tags to be returned, as generally no 
additional data is gained from their return. Data from archival tags 
are used to ascertain HMS life history information such as migratory 
patterns and spawning site fidelity.
    The current regulations under 50 CFR 635.33 regarding archival tags 
have three parts. First, the regulation requires that any person 
seeking to affix or implant an archival tag into Atlantic HMS submit an 
application for an exempted fishing permit (EFP) or scientific research 
permit (SRP) with details about the research. The applications ask for 
details concerning the research objectives, the type and number of tags 
used, the species and approximate size of the tagged fish, and the 
location and method of capture of the tagged fish. Second, if a 
fisherman catches an HMS with an archival tag, the fisherman may land 
the HMS, regardless of the other regulatory requirements for that fish 
(e.g., size limit, season, etc.), if the fisherman complies with the 
third part of the regulations. The third and last part, called a 
``landing report,'' requires fishermen landing an HMS with an archival 
tag to contact NMFS at the time or prior to the time of landing, 
furnish all requested information, and either make the fish available 
for inspection or return the tag to NMFS. The information provided by 
Atlantic HMS fishermen in a landings report could include the archival 
tag itself, location of capture, and the captured fish.
    These regulations were implemented in the late 1990s at a time when 
archival tag technology was new, most of the archival tags had to be 
surgically implanted into the fish, and the mortality associated with 
surgically implanting such tags was unknown. Archival tags have been in 
use for almost 20 years and the mortality associated with the activity, 
whether it is surgically implanting the tag or affixing it externally 
to the fish, is now known to be negligible.
    NMFS has issued authorizations to only two researchers for the 
surgical implantation of an archival tag in the last 5 years. Those 
researchers have placed a small number of surgically implanted archival 
tags only in bluefin tuna, and generally only in those fish that 
measure less than 40 inches curved fork length; in larger fish, the 
researchers prefer to affix external archival tags. Given the limited 
battery and data storage capacity of archival tags, NMFS expects that 
there are few continuously functioning implanted archival tags 
currently in any Atlantic HMS. Researchers have communicated to NMFS 
that implanted archival tag recovery has decreased over the last 4 
years. Presently, PSAT, SPOT, and other externally-affixed archival 
tags are more commonly used and, as previously mentioned, this is 
perhaps in part because the data recovery does not depend on re-
catching the fish and extricating the tag. Furthermore, while the 
information that could be provided in the landings report such as 
location of landing and length of Atlantic HMS may be helpful in 
assisting scientists, NMFS rarely hears of any archival tagged fish 
being recaptured. A few times a year, a fisherman may call NMFS to ask 
where to return a tag (most often these calls are about non-archival 
tags) they obtained from an Atlantic HMS in their possession. If a 
fisherman is indeed calling about returning an archival tag, any 
information collected about the fish is given directly to the 
scientists or entities noted on the tag and not necessarily to NMFS. 
Given that scientists continue to place externally-

[[Page 22046]]

affixed archival tags and are not notifying NMFS that the lack of 
enforcement of the landings report is resulting in a loss of needed 
scientific data, NMFS assumes that both scientists and fishermen would 
not object to the removal of the landing report requirement, but 
invites comments on this provision.
    NMFS is considering revisions to the regulatory requirements 
because the original conservation and management concern about affixing 
tags to highly migratory species (i.e., the potential for high 
mortality) is now commonly accepted as non-problematic. The goal of 
this proposed rule is to reduce administrative and regulatory burden 
given the outdated conservation concern, while maintaining appropriate 
conservation and management regulatory requirements.
    NMFS, in one non-preferred alternative, considered removing all 
authorization and reporting requirements in the regulations regarding 
archival tags. Under this alternative, researchers would no longer need 
to apply for authorization to implant or affix archival tags to 
Atlantic HMS, and fishermen who catch an Atlantic HMS with an archival 
tag would no longer be required to make a landing report or make the 
fish available to a NMFS scientist, enforcement agent, or other person 
designated in writing by NMFS. Additionally, under this alternative, in 
order to land an HMS with any type of archival tag, fishermen would 
need to meet the other regulatory requirements applicable to that fish. 
Under this alternative, the return of any archival tag by a fisherman 
who retains a tagged Atlantic HMS to NMFS or the tag's originating 
researcher would be voluntary. For surgically implanted tags, any 
information collected by the tag would be lost unless the tag is 
voluntarily returned to either NMFS or the originating researcher. 
Externally affixed archival tags, such as PSAT and SPOT, are able to 
remotely transmit their data, making the information collected by the 
tag available to researchers whether the tag is returned to them or 
not. However, data about the landings and ultimate disposition of the 
fish would potentially be lost if the fisherman did not contact NMFS or 
the researcher. Thus, while this non-preferred alternative would reduce 
the administrative cost for researchers and for fishermen who catch a 
fish with any type of archival tag, removing the regulatory incentive 
to return surgically implanted tags could result in the loss of 
valuable life history and biological data, the loss of any physical 
tags currently in the field, and a loss of investment for researchers 
with such tags currently in the field. Removing the regulatory 
incentive to contact NMFS or the researcher could also potentially 
result in a loss of data including data about the landing and ultimate 
disposition of the fish, although as previously discussed, such 
reporting for externally affixed tags typically does not currently 
occur under the regulations.
    Data collected from returned surgically-implanted tags are 
important to the tagging program. Without the regulatory requirement to 
return surgically implanted tags, the scientific contributions and 
value of surgically implanted archival tagging programs to Atlantic HMS 
management and conservation may not be realized. Further, uncertainty 
about tag and data recovery could dissuade the future use of surgically 
implanted tags.
    NMFS' preferred alternative would modify all parts of the 
regulation. Specifically, regarding the first part of the regulation, 
the alternative would remove the requirement for researchers to obtain 
written authorization from NMFS to implant or affix an archival tag. 
Regarding the second and third parts of the regulations, the preferred 
alternative would remove the landings report requirement while 
maintaining the regulatory incentive that Atlantic HMS caught with a 
surgically implanted archival tag could be retained, regardless of the 
other regulations, on the condition that the surgically implanted tag 
is returned to either the originating researcher or to NMFS. The 
regulation would no longer require the person retaining the fish to 
submit a landing report to NMFS or make the fish available for 
inspection and tag recovery by a NMFS scientist, enforcement agent, or 
other person designated in writing by NMFS. Rather, anyone catching a 
fish that could not otherwise be landed, but that has a surgically-
implanted archival tag, can land the fish if the fisherman returns the 
tag to the originating researcher or NMFS. In all other cases, NMFS 
would encourage the fisherman to return the tag and any information 
requested directly to the scientist or entity noted on the tag itself. 
As described above, NMFS believes fishermen already work directly with 
scientists when returning tags.
    NMFS prefers this alternative because it maintains appropriate 
management and conservation requirements while eliminating certain 
administrative burdens to make the archival tagging process more 
efficient. This alternative would reduce any time and delay cost to 
researchers associated with the applying for a permit to place tags on 
Atlantic HMS. It would not change the effort or cost to fishermen who 
catch an Atlantic HMS with a surgically implanted archival tag, 
although the cost associated with returning the tag to the researcher 
is minimal.
    Additionally, the preferred alternative would offer more certainty 
that, for those rare surgically-implanted tags, recollection and data 
recovery would take place by maintaining regulatory incentives for the 
return of implanted tags. This would afford some assurance to 
researchers that current or future archival tag research activity with 
surgically implanted tags would not operate at a loss in investment due 
to discarded tags and would continue to contribute to the collection of 
Atlantic HMS life history and biological data. For all the reasons 
above, NMFS prefers this alternative.

Request for Comments

    NMFS is requesting comments on the proposed action, which would 
remove the requirement for researchers to obtain written authorization 
to implant or affix archival tags, to continue to require fishermen who 
land a fish with a surgically implanted archival tag to return the tag 
to the researcher or NMFS, to encourage fishermen who land a fish with 
an externally affixed archival tag to return the tag to the researcher 
or NMFS, and to remove the landing report requirement.
    Additionally, at the September 2015 HMS Advisory Panel meeting in 
Silver Spring, MD, NMFS received a request to prohibit the retention of 
any Atlantic HMS caught with an externally affixed archival or 
electronic tag. The Advisory Panel member who suggested this change 
noted that archival tags are expensive and that the tagged live fish in 
the wild allows scientists to collect biological data and other 
information that cannot be collected by other means. Given this 
request, NMFS is requesting comments on whether fishermen who catch a 
fish with an externally affixed archival tag, such as a PSAT or SPOT, 
should be required to release the fish even if the fish is otherwise 
legal to land (e.g., meets the minimum size restrictions and caught 
with appropriate gear). While this proposed rule focuses on the more 
limited issue of easing the regulatory burden associated with 
regulations that have over time become outdated because of changes in 
tagging technology, we are interested in public comments on the 
Advisory Panel member's request, as a preliminary first step in 
exploring future related responsive action through separate rulemaking, 
as appropriate.

[[Page 22047]]

Public Hearings

    Public hearings on this proposed rule are not currently scheduled. 
If you would like to request a public hearing, please contact Larry 
Redd, Craig Cockrell, or Karyl Brewster-Geisz by phone at 301-427-8503.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, the Magnuson-Stevens Act, and other applicable law, subject 
to further consideration after public comment.
    This proposed action is not significant for the purposes of 
Executive Order 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 to revise Atlantic HMS archival 
tag management measures, if adopted, would not have a significant 
economic impact on a substantial number of small entities under Section 
605(b) of the Regulatory Flexibility Act (RFA).
    As described above, this proposed rule would modify the regulations 
so that researchers would no longer need to obtain written 
authorization from NMFS before implanting or affixing archival tags. 
Thus, this proposed rule would reduce any time and delay costs to 
researchers because they would not need to apply for a permit to place 
tags on Atlantic HMS. Also, the proposed rule would no longer require 
the person retaining the fish to submit a landing report to NMFS or 
make the fish available for inspection and tag recovery by a NMFS 
scientist, enforcement agent, or other person designated in writing by 
NMFS. Given that scientists continue to place externally-affixed 
archival tags and are not notifying NMFS that the lack of enforcement 
of the landings report is resulting in a loss of needed scientific 
data, NMFS assumes that both scientists and fishermen would not object 
to the removal of the landing report requirement but are requesting 
comments on this provision. Fishermen would be relieved of the 
obligation to file a landings report with NMFS if they caught and 
retained an HMS with an externally affixed archival tag and thus would 
have less regulatory obligation and delay in bringing the fish to 
market. The cost to fisherman associated with returning the tag to the 
researcher are minimal and, for surgically implanted tags in recent 
years, uncommon, particularly since NMFS has issued authorizations to 
only two researchers for the surgical implantation of an archival tag 
in the last 5 years. However, if a fish with a surgically implanted 
archival tag were caught, this proposed rule would offer some certainty 
that tag recollection and data recovery would take place by maintaining 
the regulatory incentive for the return of implanted tags to NMFS or 
the originating research.
    For the last five years, NMFS has issued an average of 12 permits 
for externally affixing archival tags (e.g., pop-up satellite archival 
tags and smart position and temperature tags), and in the same time 
frame, NMFS has issued authorizations to only 2 researchers for the 
surgical implantation of an archival tag. Therefore, NMFS estimates 
that this rule would apply to approximately 14 research entities. The 
rule would also apply to any fisherman who caught a fish that has a 
surgically implanted archival tag. At this time, NMFS does not know how 
many fishermen might encounter this situation but, because NMFS has 
issued permits to only two researchers in the last five years that 
would allow for the surgical implantation of archival tags and those 
researchers have surgically implanted only a limited number of archival 
tags, NMFS estimates minimal fishermen would be affected--perhaps less 
than five per year. The action does not contain any new collection of 
information, reporting, record-keeping, or other compliance 
requirements. Rather, this rule would relieve approximately 14 research 
entities from the need to apply for a permit to place archival tags on 
Atlantic HMS. For the reasons above, the archival tag management 
measures proposed in this rule would not have a significant impact on a 
substantial number of small entities.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: April 8, 2016.
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 635 is 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for part 635 continues to read as follows:


    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

0
2. Revise Sec.  635.33 to read as follows:


Sec.  635.33  Archival tags.

    (a) Landing an HMS with a surgically implanted archival tag. 
Notwithstanding other provisions of this part, persons may catch, 
possess, retain, and land an Atlantic HMS in which an archival tag has 
been surgically implanted, provided such persons return the tag to the 
research entity indicated on the tag or to NMFS at an address 
designated by NMFS and report the fish as required in Sec.  635.5.
    (b) Quota monitoring. If an Atlantic HMS landed under the authority 
of paragraph (a) of this section is subject to a quota, the fish will 
be counted against the applicable quota for the species consistent with 
the fishing gear and activity which resulted in the catch. In the event 
such fishing gear or activity is otherwise prohibited under applicable 
provisions of this part, the fish shall be counted against the reserve 
or research quota established for that species, as appropriate.
0
3. In Sec.  635.71, revise paragraph (a)(20) to read as follows


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (20) Fail to return a surgically implanted archival tag of a 
retained Atlantic HMS to NMFS or the research entity and report such 
retention, as specified in Sec.  635.33.
* * * * *
[FR Doc. 2016-08535 Filed 4-13-16; 8:45 am]
 BILLING CODE 3510-22-P



                                               22044                   Federal Register / Vol. 81, No. 72 / Thursday, April 14, 2016 / Proposed Rules

                                               is available, all of these businesses are                  SBA has established size standards for              operations and economic profit than if
                                               thought to be primarily engaged in                      all major industries, including                        the shrimp moratorium permit program
                                               shellfish harvesting activities (e.g., Gulf             commercial shellfish harvesting                        was allowed to expire.
                                               shrimp, South Atlantic shrimp, and                      businesses (NAICS code 114112). A                        Based on the information above, a
                                               Atlantic sea scallops fisheries). In 2013,              business primarily involved in shellfish               reduction in profits for a substantial
                                               the primary source of gross revenue for                 harvesting is classified as a small                    number of small entities is not expected
                                               approximately 84 percent of these                       business if it is independently owned                  as a result of this rule. Thus, an initial
                                               businesses was landings from one or                     and operated, is not dominant in its                   regulatory flexibility analysis is not
                                               more of these shellfish fisheries, while                field of operation (including its                      required and none has been prepared.
                                               the other 16 percent did not have                       affiliates), and has combined annual                     No duplicative, overlapping, or
                                               commercial landings in any fishery. It is               receipts not in excess of $5.5 million.                conflicting Federal rules have been
                                               common for a certain percentage of                      Based on the information above, all                    identified.
                                               businesses with Gulf shrimp permits to                  businesses directly regulated by this
                                                                                                                                                              List of Subjects in 50 CFR Part 622
                                               be commercially inactive in a given                     proposed rule are determined to be
                                               year, because of economic conditions in                 small businesses for the purpose of this                 Commercial fisheries, Fishing, Gulf,
                                               the Gulf shrimp fishery, other fisheries,               analysis. Therefore, it is determined that             Permits, Shrimp.
                                               or other industries (e.g., oil and gas) in              this proposed rule will affect a                         Dated: April 11, 2016.
                                               which these businesses, their owners,                   substantial number of small businesses.                Eileen Sobeck,
                                               and their crew sometimes participate.                      The number of businesses with Gulf
                                                                                                                                                              Assistant Administrator for Fisheries,
                                               Some businesses may have also been                      shrimp moratorium permits that had                     National Marine Fisheries Service.
                                               inactive due to issues associated with                  shrimp landings from offshore waters in
                                                                                                       the Gulf, and, in turn, the level of                     For the reasons set out in the
                                               the Deepwater Horizon MC252 event in
                                                                                                       fishing effort in offshore waters,                     preamble, 50 CFR part 622 is proposed
                                               2010 and subsequent payouts from
                                                                                                       significantly decreased from 2002                      to be amended as follows:
                                               British Petroleum (BP). NMFS only
                                               possesses data on such payouts and                      through 2009. As used in this section
                                                                                                       and Amendment 17A, offshore waters                     PART 622—FISHERIES OF THE
                                               other transfer payments for a sample of                                                                        CARIBBEAN, GULF OF MEXICO, AND
                                               the permitted businesses, and thus                      are waters that are seaward of the
                                                                                                       demarcation lines established under the                SOUTH ATLANTIC
                                               cannot confirm the extent to which such
                                               payouts contributed to the lack of                      1972 Convention on the International                   ■ 1. The authority citation for part 622
                                               commercial harvesting activity by all of                Regulations for Preventing Collisions at               continues to read as follows:
                                               the inactive businesses. Given the lack                 Sea, which define boundaries across
                                                                                                       inland waters, such as harbor mouths                       Authority: 16 U.S.C. 1801 et seq.
                                               of data to the contrary and because these
                                               businesses possess Gulf shrimp                          and inlets, for navigation purposes.                   ■ 2. In § 622.50, revise the introductory
                                               moratorium permits, for the purpose of                  Also, businesses had negative net                      text of paragraph (b) to read as follows:
                                               this analysis, these 1,464 businesses are               revenue from their operations and
                                                                                                       generally earned economic losses on                    § 622.50 Permits, permit moratorium, and
                                               assumed to be primarily engaged in                                                                             endorsements.
                                               commercial shellfish harvesting.                        average from 2006 through 2009.
                                                                                                       However, the number of active vessels                  *     *     *    *     *
                                                  From 2011 through 2013, the greatest                 and, in turn, effort in the offshore Gulf                (b) Moratorium on commercial vessel
                                               average annual gross revenue earned by                  shrimp fishery generally stabilized after              permits for Gulf shrimp. The provisions
                                               a single business was approximately                     2010.                                                  of this paragraph (b) are applicable
                                               $2.48 million. On average, a business                      Although transfer payments from BP                  through October 26, 2026.
                                               with a Gulf shrimp moratorium permit                    as a result of the Deepwater Horizon                   *     *     *    *     *
                                               had an annual gross revenue of                          MC252 event helped to increase                         [FR Doc. 2016–08607 Filed 4–13–16; 8:45 am]
                                               approximately $247,000, annual net                      economic profits from 2011 through                     BILLING CODE 3510–22–P
                                               revenue from operations (commercial                     2013, the increases in net revenue from
                                               fishing activities) of approximately                    operations during that time are thought
                                               $6,300, and an annual economic profit                   to have been caused primarily by lower                 DEPARTMENT OF COMMERCE
                                               of approximately $37,000. All monetary                  fuel prices, higher demand for and thus
                                               estimates are in 2001 dollars. Average                  higher prices for shrimp, and higher                   National Oceanic and Atmospheric
                                               annual economic profit was greater                      catch rates. These higher catch rates are              Administration
                                               between 2011 and 2013 compared to the                   directly attributable to the reductions in
                                               2006–2009 time period, and greater than                 effort. To maintain those higher catch                 50 CFR Part 635
                                               net revenue from operations, partly                     rates, effort must at least remain stable.             [Docket No. 150817722–6304–01]
                                               because of non-fishing related income,                  Because net revenue from operations
                                               mostly in the form of payouts from BP                   and economic profit have been positive                 RIN 0648–BF10
                                               (i.e., transfer payments) due to the                    in recent years, if the permit
                                               Deepwater Horizon MC252 event in                                                                               Atlantic Highly Migratory Species;
                                                                                                       moratorium was not extended and the
                                               2010. Thus, although the average profit                                                                        Archival Tag Management Measures
                                                                                                       fishery became subject to open access
                                               margin from 2011 through 2013 was                       Gulf shrimp permits, it is possible that               AGENCY:  National Marine Fisheries
                                               nearly 15 percent of gross revenue, the                 the number of active vessels and effort                Service (NMFS), National Oceanic and
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               average margin from operations was                      in the offshore fishery would increase,                Atmospheric Administration (NOAA),
                                               only about 2.6 percent. Though                          which would be expected to reduce                      Commerce.
                                               relatively small, this margin from                      catch rates and, in turn, net revenue                  ACTION: Proposed rule; request for
                                               operations is still greater than what                   from operations and economic profits.                  comments.
                                               these businesses earned between 2006                    Thus, the proposed extension of the
                                               and 2009 when net revenue from                          moratorium on Gulf shrimp permits for                  SUMMARY:   NMFS is proposing to revise
                                               operations was generally negative, on                   an additional 10 years is expected to                  the regulations that currently require
                                               average.                                                result in greater net revenue from                     persons surgically implanting archival


                                          VerDate Sep<11>2014   14:22 Apr 13, 2016   Jkt 238001   PO 00000   Frm 00012   Fmt 4702   Sfmt 4702   E:\FR\FM\14APP1.SGM   14APP1


                                                                       Federal Register / Vol. 81, No. 72 / Thursday, April 14, 2016 / Proposed Rules                                           22045

                                               tags in Atlantic highly migratory species               otherwise sensitive information                        limit, season, etc.), if the fisherman
                                               (HMS) or externally affixing archival                   submitted voluntarily by the sender will               complies with the third part of the
                                               tags to such species to obtain written                  be publicly accessible. NMFS will                      regulations. The third and last part,
                                               authorization from NMFS and that                        accept anonymous comments (enter ‘‘N/                  called a ‘‘landing report,’’ requires
                                               require fishermen to report their catches               A’’ in the required fields if you wish to              fishermen landing an HMS with an
                                               of Atlantic HMS with such tags to                       remain anonymous).                                     archival tag to contact NMFS at the time
                                               NMFS. Archival tags are tags that record                FOR FURTHER INFORMATION CONTACT:                       or prior to the time of landing, furnish
                                               scientific information about the                        Larry Redd, Craig Cockrell, or Karyl                   all requested information, and either
                                               migratory behavior of a fish and include                Brewster-Geisz by phone at 301–427–                    make the fish available for inspection or
                                               tags that are surgically implanted in a                 8503.                                                  return the tag to NMFS. The information
                                               fish and tags that are externally affixed,                                                                     provided by Atlantic HMS fishermen in
                                                                                                       SUPPLEMENTARY INFORMATION: Atlantic
                                               such as pop-up satellite (PSAT) and                                                                            a landings report could include the
                                                                                                       HMS are managed under the 2006
                                               smart position and temperature tags                                                                            archival tag itself, location of capture,
                                                                                                       Consolidated HMS Fishery Management
                                               (SPOT). Specifically, this rule would                                                                          and the captured fish.
                                                                                                       Plan (FMP). Implementing regulations at                   These regulations were implemented
                                               remove the requirement for researchers                  50 CFR part 635 are issued under the
                                               to obtain written authorization from                                                                           in the late 1990s at a time when archival
                                                                                                       authority of the Magnuson-Stevens                      tag technology was new, most of the
                                               NMFS to implant or affix an archival tag                Fishery Conservation and Management
                                               but would continue to allow persons                                                                            archival tags had to be surgically
                                                                                                       Act (Magnuson-Stevens Act), 16 U.S.C.                  implanted into the fish, and the
                                               who catch a fish with a surgically                      1801 et seq., and Atlantic Tunas
                                               implanted archival tag to retain the fish                                                                      mortality associated with surgically
                                                                                                       Convention Act (ATCA), 16 U.S.C. 971                   implanting such tags was unknown.
                                               while requiring them to return the tag to               et seq. ATCA authorizes the Secretary of
                                               the person indicated on the tag or to                                                                          Archival tags have been in use for
                                                                                                       Commerce (Secretary) to promulgate                     almost 20 years and the mortality
                                               NMFS. The regulation would no longer                    regulations, as may be necessary and
                                               require the person retaining the fish to                                                                       associated with the activity, whether it
                                                                                                       appropriate to implement ICCAT                         is surgically implanting the tag or
                                               submit to NMFS a landing report or                      recommendations.
                                               make the fish available for inspection                                                                         affixing it externally to the fish, is now
                                                                                                          ‘‘Archival tags’’ are defined at § 635.2            known to be negligible.
                                               and tag recovery by a NMFS scientist,                   as ‘‘a device that is implanted or affixed
                                               enforcement agent, or other person                                                                                NMFS has issued authorizations to
                                                                                                       to a fish to electronically record                     only two researchers for the surgical
                                               designated in writing by NMFS. Any                      scientific information about the
                                               persons who land an Atlantic HMS with                                                                          implantation of an archival tag in the
                                                                                                       migratory behavior of that fish.’’                     last 5 years. Those researchers have
                                               an externally affixed archival tag would                Scientists use such tags because they                  placed a small number of surgically
                                               be encouraged to follow the instructions                offer a powerful tool for tracking the                 implanted archival tags only in bluefin
                                               on the tag to return the tag to the                     movements, geolocation, and behavior                   tuna, and generally only in those fish
                                               appropriate research entity or to NMFS.                 of individual tunas, shark, swordfish, or              that measure less than 40 inches curved
                                               This action could affect any researchers                billfishes. Data recovery from some                    fork length; in larger fish, the
                                               wishing to place archival tags on                       archival tags, particularly those that are             researchers prefer to affix external
                                               Atlantic HMS and any fishermen who                      surgically implanted into the fish,                    archival tags. Given the limited battery
                                               might catch such a tagged fish.                         requires that fish be re-caught. Other                 and data storage capacity of archival
                                               DATES: Written comments must be                         archival tags, such as PSAT and SPOT,                  tags, NMFS expects that there are few
                                               received by May 16, 2016.                               which are externally affixed to the fish,              continuously functioning implanted
                                               ADDRESSES: You may submit comments                      are able to transmit the information                   archival tags currently in any Atlantic
                                               on this document, identified by NOAA–                   remotely and do not require the fish to                HMS. Researchers have communicated
                                               NMFS–2016–0017, by any of the                           be re-caught nor do researchers expect                 to NMFS that implanted archival tag
                                               following methods:                                      the tags to be returned, as generally no               recovery has decreased over the last 4
                                                  • Electronic Submission: Submit all                  additional data is gained from their                   years. Presently, PSAT, SPOT, and other
                                               electronic public comments via the                      return. Data from archival tags are used               externally-affixed archival tags are more
                                               Federal e-Rulemaking Portal. Go to                      to ascertain HMS life history                          commonly used and, as previously
                                               www.regulations.gov/                                    information such as migratory patterns                 mentioned, this is perhaps in part
                                               #!docketDetail;D=NOAA-NMFS-2016-                        and spawning site fidelity.                            because the data recovery does not
                                               0017, click the ‘‘Comment Now!’’ icon,                     The current regulations under 50 CFR                depend on re-catching the fish and
                                               complete the required fields, and enter                 635.33 regarding archival tags have                    extricating the tag. Furthermore, while
                                               or attach your comments.                                three parts. First, the regulation requires            the information that could be provided
                                                  • Mail: Submit written comments to                   that any person seeking to affix or                    in the landings report such as location
                                               Margo Schulze-Haugen, Chief, Atlantic                   implant an archival tag into Atlantic                  of landing and length of Atlantic HMS
                                               HMS Management Division at 1315                         HMS submit an application for an                       may be helpful in assisting scientists,
                                               East-West Highway, Silver Spring, MD                    exempted fishing permit (EFP) or                       NMFS rarely hears of any archival
                                               20910.                                                  scientific research permit (SRP) with                  tagged fish being recaptured. A few
                                                  Instructions: Comments sent by any                   details about the research. The                        times a year, a fisherman may call
                                               other method, to any other address or                   applications ask for details concerning                NMFS to ask where to return a tag (most
                                               individual, or received after the end of                the research objectives, the type and                  often these calls are about non-archival
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                                               the comment period, may not be                          number of tags used, the species and                   tags) they obtained from an Atlantic
                                               considered by NMFS. All comments                        approximate size of the tagged fish, and               HMS in their possession. If a fisherman
                                               received are a part of the public record                the location and method of capture of                  is indeed calling about returning an
                                               and will generally be posted for public                 the tagged fish. Second, if a fisherman                archival tag, any information collected
                                               viewing on www.regulations.gov                          catches an HMS with an archival tag,                   about the fish is given directly to the
                                               without change. All personal identifying                the fisherman may land the HMS,                        scientists or entities noted on the tag
                                               information (e.g., name, address, etc.),                regardless of the other regulatory                     and not necessarily to NMFS. Given that
                                               confidential business information, or                   requirements for that fish (e.g., size                 scientists continue to place externally-


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                                               22046                   Federal Register / Vol. 81, No. 72 / Thursday, April 14, 2016 / Proposed Rules

                                               affixed archival tags and are not                       investment for researchers with such                   effort or cost to fishermen who catch an
                                               notifying NMFS that the lack of                         tags currently in the field. Removing the              Atlantic HMS with a surgically
                                               enforcement of the landings report is                   regulatory incentive to contact NMFS or                implanted archival tag, although the
                                               resulting in a loss of needed scientific                the researcher could also potentially                  cost associated with returning the tag to
                                               data, NMFS assumes that both scientists                 result in a loss of data including data                the researcher is minimal.
                                               and fishermen would not object to the                   about the landing and ultimate                            Additionally, the preferred alternative
                                               removal of the landing report                           disposition of the fish, although as                   would offer more certainty that, for
                                               requirement, but invites comments on                    previously discussed, such reporting for               those rare surgically-implanted tags,
                                               this provision.                                         externally affixed tags typically does not
                                                                                                                                                              recollection and data recovery would
                                                  NMFS is considering revisions to the                 currently occur under the regulations.
                                               regulatory requirements because the                        Data collected from returned                        take place by maintaining regulatory
                                               original conservation and management                    surgically-implanted tags are important                incentives for the return of implanted
                                               concern about affixing tags to highly                   to the tagging program. Without the                    tags. This would afford some assurance
                                               migratory species (i.e., the potential for              regulatory requirement to return                       to researchers that current or future
                                               high mortality) is now commonly                         surgically implanted tags, the scientific              archival tag research activity with
                                               accepted as non-problematic. The goal                   contributions and value of surgically                  surgically implanted tags would not
                                               of this proposed rule is to reduce                      implanted archival tagging programs to                 operate at a loss in investment due to
                                               administrative and regulatory burden                    Atlantic HMS management and                            discarded tags and would continue to
                                               given the outdated conservation                         conservation may not be realized.                      contribute to the collection of Atlantic
                                               concern, while maintaining appropriate                  Further, uncertainty about tag and data                HMS life history and biological data.
                                               conservation and management                             recovery could dissuade the future use                 For all the reasons above, NMFS prefers
                                               regulatory requirements.                                of surgically implanted tags.                          this alternative.
                                                  NMFS, in one non-preferred                              NMFS’ preferred alternative would                   Request for Comments
                                               alternative, considered removing all                    modify all parts of the regulation.
                                               authorization and reporting                             Specifically, regarding the first part of                 NMFS is requesting comments on the
                                               requirements in the regulations                         the regulation, the alternative would                  proposed action, which would remove
                                               regarding archival tags. Under this                     remove the requirement for researchers                 the requirement for researchers to obtain
                                               alternative, researchers would no longer                to obtain written authorization from                   written authorization to implant or affix
                                               need to apply for authorization to                      NMFS to implant or affix an archival                   archival tags, to continue to require
                                               implant or affix archival tags to Atlantic              tag. Regarding the second and third                    fishermen who land a fish with a
                                               HMS, and fishermen who catch an                         parts of the regulations, the preferred                surgically implanted archival tag to
                                               Atlantic HMS with an archival tag                       alternative would remove the landings                  return the tag to the researcher or
                                               would no longer be required to make a                   report requirement while maintaining                   NMFS, to encourage fishermen who
                                               landing report or make the fish available               the regulatory incentive that Atlantic                 land a fish with an externally affixed
                                               to a NMFS scientist, enforcement agent,                 HMS caught with a surgically implanted                 archival tag to return the tag to the
                                               or other person designated in writing by                archival tag could be retained,                        researcher or NMFS, and to remove the
                                               NMFS. Additionally, under this                          regardless of the other regulations, on                landing report requirement.
                                               alternative, in order to land an HMS                    the condition that the surgically
                                               with any type of archival tag, fishermen                implanted tag is returned to either the                   Additionally, at the September 2015
                                               would need to meet the other regulatory                 originating researcher or to NMFS. The                 HMS Advisory Panel meeting in Silver
                                               requirements applicable to that fish.                   regulation would no longer require the                 Spring, MD, NMFS received a request to
                                               Under this alternative, the return of any               person retaining the fish to submit a                  prohibit the retention of any Atlantic
                                               archival tag by a fisherman who retains                 landing report to NMFS or make the fish                HMS caught with an externally affixed
                                               a tagged Atlantic HMS to NMFS or the                    available for inspection and tag recovery              archival or electronic tag. The Advisory
                                               tag’s originating researcher would be                   by a NMFS scientist, enforcement agent,                Panel member who suggested this
                                               voluntary. For surgically implanted tags,               or other person designated in writing by               change noted that archival tags are
                                               any information collected by the tag                    NMFS. Rather, anyone catching a fish                   expensive and that the tagged live fish
                                               would be lost unless the tag is                         that could not otherwise be landed, but                in the wild allows scientists to collect
                                               voluntarily returned to either NMFS or                  that has a surgically-implanted archival               biological data and other information
                                               the originating researcher. Externally                  tag, can land the fish if the fisherman                that cannot be collected by other means.
                                               affixed archival tags, such as PSAT and                 returns the tag to the originating                     Given this request, NMFS is requesting
                                               SPOT, are able to remotely transmit                     researcher or NMFS. In all other cases,                comments on whether fishermen who
                                               their data, making the information                      NMFS would encourage the fisherman                     catch a fish with an externally affixed
                                               collected by the tag available to                       to return the tag and any information                  archival tag, such as a PSAT or SPOT,
                                               researchers whether the tag is returned                 requested directly to the scientist or                 should be required to release the fish
                                               to them or not. However, data about the                 entity noted on the tag itself. As                     even if the fish is otherwise legal to land
                                               landings and ultimate disposition of the                described above, NMFS believes                         (e.g., meets the minimum size
                                               fish would potentially be lost if the                   fishermen already work directly with                   restrictions and caught with appropriate
                                               fisherman did not contact NMFS or the                   scientists when returning tags.                        gear). While this proposed rule focuses
                                               researcher. Thus, while this non-                          NMFS prefers this alternative because               on the more limited issue of easing the
                                               preferred alternative would reduce the                  it maintains appropriate management                    regulatory burden associated with
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                                               administrative cost for researchers and                 and conservation requirements while                    regulations that have over time become
                                               for fishermen who catch a fish with any                 eliminating certain administrative                     outdated because of changes in tagging
                                               type of archival tag, removing the                      burdens to make the archival tagging                   technology, we are interested in public
                                               regulatory incentive to return surgically               process more efficient. This alternative               comments on the Advisory Panel
                                               implanted tags could result in the loss                 would reduce any time and delay cost                   member’s request, as a preliminary first
                                               of valuable life history and biological                 to researchers associated with the                     step in exploring future related
                                               data, the loss of any physical tags                     applying for a permit to place tags on                 responsive action through separate
                                               currently in the field, and a loss of                   Atlantic HMS. It would not change the                  rulemaking, as appropriate.


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                                                                       Federal Register / Vol. 81, No. 72 / Thursday, April 14, 2016 / Proposed Rules                                                 22047

                                               Public Hearings                                         would have less regulatory obligation                  Reporting and recordkeeping
                                                 Public hearings on this proposed rule                 and delay in bringing the fish to market.              requirements, Treaties.
                                               are not currently scheduled. If you                     The cost to fisherman associated with                    Dated: April 8, 2016.
                                               would like to request a public hearing,                 returning the tag to the researcher are                Samuel D. Rauch III,
                                               please contact Larry Redd, Craig                        minimal and, for surgically implanted
                                                                                                                                                              Deputy Assistant Administrator for
                                               Cockrell, or Karyl Brewster-Geisz by                    tags in recent years, uncommon,                        Regulatory Programs, National Marine
                                               phone at 301–427–8503.                                  particularly since NMFS has issued                     Fisheries Service.
                                                                                                       authorizations to only two researchers
                                               Classification                                          for the surgical implantation of an                      For the reasons set out in the
                                                  The NMFS Assistant Administrator                     archival tag in the last 5 years. However,             preamble, 50 CFR part 635 is proposed
                                               has determined that the proposed rule is                if a fish with a surgically implanted                  to be amended as follows:
                                               consistent with the 2006 Consolidated                   archival tag were caught, this proposed
                                                                                                                                                              PART 635—ATLANTIC HIGHLY
                                               HMS FMP and its amendments, the                         rule would offer some certainty that tag
                                                                                                                                                              MIGRATORY SPECIES
                                               Magnuson-Stevens Act, and other                         recollection and data recovery would
                                               applicable law, subject to further                      take place by maintaining the regulatory               ■ 1. The authority citation for part 635
                                               consideration after public comment.                     incentive for the return of implanted                  continues to read as follows:
                                                  This proposed action is not significant              tags to NMFS or the originating
                                               for the purposes of Executive Order                     research.                                                Authority: 16 U.S.C. 971 et seq.; 16 U.S.C.
                                               12866.                                                                                                         1801 et seq.
                                                                                                          For the last five years, NMFS has
                                                  The Chief Counsel for Regulation of                  issued an average of 12 permits for                    ■   2. Revise § 635.33 to read as follows:
                                               the Department of Commerce certified                    externally affixing archival tags (e.g.,
                                               to the Chief Counsel for Advocacy of the                                                                       § 635.33   Archival tags.
                                                                                                       pop-up satellite archival tags and smart
                                               Small Business Administration that this                                                                          (a) Landing an HMS with a surgically
                                                                                                       position and temperature tags), and in
                                               proposed rule to revise Atlantic HMS                                                                           implanted archival tag.
                                                                                                       the same time frame, NMFS has issued
                                               archival tag management measures, if                                                                           Notwithstanding other provisions of this
                                                                                                       authorizations to only 2 researchers for
                                               adopted, would not have a significant                                                                          part, persons may catch, possess, retain,
                                                                                                       the surgical implantation of an archival
                                               economic impact on a substantial                                                                               and land an Atlantic HMS in which an
                                                                                                       tag. Therefore, NMFS estimates that this
                                               number of small entities under Section                                                                         archival tag has been surgically
                                                                                                       rule would apply to approximately 14
                                               605(b) of the Regulatory Flexibility Act                                                                       implanted, provided such persons
                                                                                                       research entities. The rule would also                 return the tag to the research entity
                                               (RFA).
                                                  As described above, this proposed                    apply to any fisherman who caught a                    indicated on the tag or to NMFS at an
                                               rule would modify the regulations so                    fish that has a surgically implanted                   address designated by NMFS and report
                                               that researchers would no longer need                   archival tag. At this time, NMFS does                  the fish as required in § 635.5.
                                               to obtain written authorization from                    not know how many fishermen might                        (b) Quota monitoring. If an Atlantic
                                               NMFS before implanting or affixing                      encounter this situation but, because                  HMS landed under the authority of
                                               archival tags. Thus, this proposed rule                 NMFS has issued permits to only two                    paragraph (a) of this section is subject to
                                               would reduce any time and delay costs                   researchers in the last five years that                a quota, the fish will be counted against
                                               to researchers because they would not                   would allow for the surgical                           the applicable quota for the species
                                               need to apply for a permit to place tags                implantation of archival tags and those                consistent with the fishing gear and
                                               on Atlantic HMS. Also, the proposed                     researchers have surgically implanted                  activity which resulted in the catch. In
                                               rule would no longer require the person                 only a limited number of archival tags,                the event such fishing gear or activity is
                                               retaining the fish to submit a landing                  NMFS estimates minimal fishermen                       otherwise prohibited under applicable
                                               report to NMFS or make the fish                         would be affected—perhaps less than                    provisions of this part, the fish shall be
                                               available for inspection and tag recovery               five per year. The action does not                     counted against the reserve or research
                                               by a NMFS scientist, enforcement agent,                 contain any new collection of                          quota established for that species, as
                                               or other person designated in writing by                information, reporting, record-keeping,                appropriate.
                                               NMFS. Given that scientists continue to                 or other compliance requirements.                      ■ 3. In § 635.71, revise paragraph (a)(20)
                                               place externally-affixed archival tags                  Rather, this rule would relieve                        to read as follows
                                               and are not notifying NMFS that the                     approximately 14 research entities from
                                               lack of enforcement of the landings                     the need to apply for a permit to place                § 635.71   Prohibitions.
                                               report is resulting in a loss of needed                 archival tags on Atlantic HMS. For the                 *     *     *     *     *
                                               scientific data, NMFS assumes that both                 reasons above, the archival tag                          (a) * * *
                                               scientists and fishermen would not                      management measures proposed in this                     (20) Fail to return a surgically
                                               object to the removal of the landing                    rule would not have a significant impact               implanted archival tag of a retained
                                               report requirement but are requesting                   on a substantial number of small                       Atlantic HMS to NMFS or the research
                                               comments on this provision. Fishermen                   entities.                                              entity and report such retention, as
                                               would be relieved of the obligation to                                                                         specified in § 635.33.
                                                                                                       List of Subjects in 50 CFR Part 635
                                               file a landings report with NMFS if they                                                                       *     *     *     *     *
                                               caught and retained an HMS with an                        Fisheries, Fishing, Fishing vessels,                 [FR Doc. 2016–08535 Filed 4–13–16; 8:45 am]
                                               externally affixed archival tag and thus                Foreign relations, Imports, Penalties,                 BILLING CODE 3510–22–P
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Document Created: 2018-02-07 13:48:03
Document Modified: 2018-02-07 13:48:03
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule; request for comments.
DatesWritten comments must be received by May 16, 2016.
ContactLarry Redd, Craig Cockrell, or Karyl Brewster-Geisz by phone at 301-427-8503.
FR Citation81 FR 22044 
RIN Number0648-BF10
CFR AssociatedFisheries; Fishing; Fishing Vessels; Foreign Relations; Imports; Penalties; Reporting and Recordkeeping Requirements and Treaties

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