H. Rept. 116-531 - DIRECT ENHANCEMENT OF SNAPPER CONSERVATION AND THE ECONOMY THROUGH NOVEL DEVICES ACT OF 2020116th Congress (2019-2020)
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116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-531
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DIRECT ENHANCEMENT OF SNAPPER CONSERVATION AND THE ECONOMY THROUGH
NOVEL DEVICES ACT OF 2020
_______
September 24, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 5126]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 5126) to require individuals fishing for Gulf
reef fish to use certain descending devices, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Direct Enhancement of Snapper
Conservation and the Economy through Novel Devices Act of 2020'' or the
``DESCEND Act of 2020''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that commercial and recreational
fishermen (which, for the purpose of this Act shall include charter
fishing) for Gulf reef fish are expected to use a venting tool or a
descending device required for possession under section 3 when
releasing fish that are exhibiting signs of barotrauma. The Secretary
of Commerce (referred to in this Act as the ``Secretary''), in
coordination with the Gulf of Mexico Fishery Management Council, should
develop and disseminate to fishermen education and outreach materials
related to proper use of venting tools and descending devices, and
strongly encourage their use by commercial and recreational fishermen
when releasing fish that are exhibiting signs of barotrauma.
SEC. 3. REQUIRED POSSESSION OF DESCENDING DEVICES.
(a) Required Gear in the Gulf Reef Fish Fishery.--Title III of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1851 et seq.) is amended by adding at the end the following:
``SEC. 321. REQUIRED POSSESSION OF DESCENDING DEVICES.
``(a) Require Gear in the Gulf Reef Fish Fishery.--It shall be
unlawful for a person on board a commercial or recreational vessel to
fish for Gulf reef fish in the Gulf of Mexico Exclusive Economic Zone
without possessing on board the vessel a venting tool or a descending
device that is rigged and ready for use while fishing is occurring.
``(b) Savings Clause.--No provision of this section shall be
interpreted to affect any program or activity carried out by the Gulf
Coast Ecosystem Restoration Council established by the Resources and
Ecosystems Sustainability, Tourist Opportunities, and Revived Economies
of the Gulf Coast States Act of 2012 (33 U.S.C. 1321 note), or any
project contained in an approved Restoration Plan developed by any
Natural Resources Damage Assessment Trustee Implementation Group to
reduce post-release mortality from barotrauma in Gulf of Mexico Reef
Fish Recreational Fisheries.
``(c) Definitions.--In this section:
``(1) Descending device.--The term `descending device' means
an instrument that--
``(A) will release fish at a depth sufficient for the
fish to be able to recover from the effects of
barotrauma;
``(B) 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;
and
``(C) is capable of--
``(i) releasing the fish automatically;
``(ii) releasing the fish by actions of the
operator of the device; or
``(iii) allowing the fish to escape on its
own.
``(2) Venting tool.--The term `venting tool' has the meaning
given to it by the Gulf of Mexico Fishery Management Council.
``(3) Gulf reef fish.--The term `Gulf reef fish' means any
fish chosen by the Gulf of Mexico Fishery Management Council
that is in the reef Fishery Management Plan for the purposes of
this Act.''.
(b) Civil Penalties.--Section 308(a) of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1858(a)) is amended by
inserting ``or section 321'' after ``section 307''.
(c) Effective Date.--The amendments made by this Act shall take
effect 1 year after the date of enactment of this Act.
(d) Conforming Amendment.--Title III of the table of contents of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1851 et seq.) is amended by striking the item relating to section 305
and all that follows through the end of the items relating to such
title and inserting the following:
``Sec. 305. Other requirements and authority.
``Sec. 306. State jurisdiction.
``Sec. 307. Prohibited acts.
``Sec. 308. Civil penalties and permit sanctions.
``Sec. 309. Criminal offenses.
``Sec. 310. Civil forfeitures.
``Sec. 311. Enforcement.
``Sec. 312. Transition to sustainable fisheries.
``Sec. 313. North Pacific fisheries conservation.
``Sec. 314. Northwest Atlantic Ocean fisheries reinvestment program.
``Sec. 315. Regional Coastal Disaster Assistance, Transition, and
Recovery Program.
``Sec. 316. Bycatch Reduction Engineering Program.
``Sec. 317. Shark Feeding.
``Sec. 318. Cooperative Research and Management Program.
``Sec. 319. Herring Study.
``Sec. 320. Restoration Study.
``Sec. 321. Required possession of descending devices.''.
(e) Sunset.--Five years after the date of enactment of this Act, the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1851 et seq.) is amended--
(1) in the table of contents, by striking the item relating
to section 321;
(2) in section 308(a), by striking ``or section 321''; and
(3) by striking section 321.
SEC. 4. IMPROVING DISCARD MORTALITY DATA.
(a) Agreement.--Within 60 days of the date of enactment of this Act,
the Secretary shall enter into an agreement with the National Academy
of Sciences to conduct a study and produce a report on discard
mortality in the Gulf of Mexico reef fish fisheries. Such study shall
include--
(1) assessment of gaps and biases in reporting of discards
and associated discard mortality;
(2) assessment of uncertainty and likely impacts of such
uncertainty in discard mortality;
(3) assessment of the effectiveness and usage rates of
barotrauma-reducing devices;
(4) recommendations for future research priorities; and
(5) recommendations for standardized reporting and
quantification of discards in the same metric as landings for
fisheries under the Gulf of Mexico Reef Fish Fishery Management
Plan.
(b) Deadline.--The National Academy of Sciences shall complete the
study described in subsection (a) and transmit the final report to the
Secretary within 2 years of the date of enactment of this Act. The
Secretary shall, within 3 months of receiving such study and report,
submit such study and report in (a) to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on Natural
Resources of the House of Representatives.
(c) Plan.--Within 1 year of receiving the study and report in
described in subsection (a), the Gulf of Mexico Fishery Management
Council and the Secretary shall--
(1) develop guidance for minimum standards for quantifying
and reporting discards and associated mortality in the Gulf of
Mexico Reef Fish Fishery Management Plan; and
(2) develop a plan to assess and monitor the effectiveness
and usage of barotrauma-reducing devices and the impact on
discard mortality rates in Gulf of Mexico reef fish fisheries.
(d) Follow-Up Report.--Within 3 years of developing minimum standards
and developing the assessment and monitoring plan in subsection (c),
the Secretary shall provide a detailed report on implementation to the
Committee on Commerce, Science, and Transportation of the Senate and
the Committee on Natural Resources of the House of Representatives.
Purpose of the Bill
The purpose of H.R. 5126 is to require individuals fishing
for Gulf reef fish to use certain descending devices, and for
other purposes.
Background and Need for the Legislation
Many marine reef fish, such as snapper and grouper,
regulate their buoyancy with a gas-filled swim bladder that
allows them to maintain a certain depth in the water column.
When a fish is brought to the surface too quickly after being
caught by hook and line, gas in the swim bladder expands as the
water pressure around the fish decreases, causing injury, or
barotrauma, to the fish. If the swim bladders rupture, the fish
are unable to regulate their buoyancy, cannot swim back down in
the water column, and may die from exposure or predation near
the surface.\1\
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\1\A Guide to Releasing Reef Fish Suffering from Barotrauma, FL.
Sea Grant, https://www.flseagrant.org/fisheries/venting/ (last visited
on Sept. 8, 2020).
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Two tools can help these fish return to depth safely:
venting tools and descending devices. A venting tool is a
sharpened hollow instrument, such as a modified hypodermic
needle, that is used to puncture the fish's body cavity and
allow the gases from the ruptured swim bladder to release and
internal organs to return to normal positions. Venting tools
are inexpensive at approximately $9.00 to $17.00 and require
``little or no preparation to use.''\2\ Descending devices cost
between $5.00 to $60.00 and allow a fish to descend back to
depth and recompress naturally. These may include weighted
hooks, lip clamps, or boxes that hold the fish and either
release automatically, allow the fish to escape on its own, or
require action by the operator of the device. Surface-released
fish are three times as likely to die as descended fish and 1.9
times as likely to die as vented fish.\3\
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\2\Gulf of Mex. Fishery Mgmt. Council, Possessing Venting Tools and
Descending Devices When Fishing for Reef Fish 6 (2017), http://
gulfcouncil.org/wp-content/uploads/E-5-September-Options-Paper-for-
Venting-Tools-and-Descending-Devices.pdf.
\3\Judson M. Curtis, Matthew W. Johnson, Sandra L. Diamond &
Gregory W. Stunz, Quantifying Delayed Mortality from Barotrauma
Impairment in Discarded Red Snapper Using Acoustic Telemetry, 7(1)
Marine & Coastal Fisheries 434, 440 (2015), https://doi.org/10.1080/
19425120.2015.1074968.
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The Gulf of Mexico Fishery Management Council (Gulf
Council) implemented an amendment to the reef fishery
management plan in 2008 requiring reef fishers to use venting
tools to reduce mortality of released fish, but the amendment
did not specify when venting should be used, resulting in
overuse and unnecessarily vented fish. This amendment also
precluded the use of descending devices, but it was repealed in
2013.\4\
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\4\Gulf of Mex. Fishery Mgmt. Council, Policy on the Use of Venting
Tools and Descending Devices 2-3 (2018), https://gulfcouncil.org/wp-
content/uploads/Gulf-Council-Policy-on-the-Use-of-Venting-Tools-and-
Descending-Devices.pdf.
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The Gulf Council currently strongly encourages the use of
descending devices or venting tools as appropriate for snapper,
grouper, and other reef fish, but does not require their
use.\5\ In April of 2017, the Gulf Council passed a motion to
instruct staff to develop an action plan to require either
descending devices or venting tools on board vessels possessing
reef fish to reduce discard mortality. The South Atlantic
Fishery Management Council approved an amendment for review by
the Secretary of Commerce in September of 2019 to require the
use of descending devices on vessels that catch snapper and
grouper. On June 15, 2020, the National Marine Fisheries
Service (NOAA Fisheries) issued a final rule to implement the
amendment, thereby requiring that descending devices be on
board all commercial, charter vessels and headboats, and
private recreational vessels in the South Atlantic region, but
not the Gulf of Mexico region, while fishing for or possessing
snapper and grouper specifically.\6\
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\5\Id. at 1.
\6\Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Snapper-Grouper Fishery Off the Southern Atlantic Region; Regulatory
Amendment 29, 85, Fed. Reg. 36,166 (June 15, 2020) (to be codified at
50 C.F.R. Sec. 622.188(a)(4), https://www.govinfo.gov/content/pkg/FR-
2020-06-15/pdf/2020-11916.pdf.
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H.R. 5126 requires every commercial or recreational vessel
engaged in fishing for Gulf reef fish more generally\7\ while
in the Gulf of Mexico region to have on board a venting tool or
descending device that is rigged and ready for use while
fishing.
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\7\See Species Directory: Federally Managed Gulf of Mexico Reef
Fish, NOAA Fisheries, https://www.fisheries.noaa.gov/species/federally-
managed-gulf-mexico-reef-fish (last visited Sept. 8, 2020).
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Committee Action
H.R. 5126 was introduced on November 15, 2019, by
Representative Garret Graves (R-LA). The bill was referred
solely to the Committee on Natural Resources, and within the
Committee to the Subcommittee on Water, Oceans, and Wildlife.
On January 14, 2020, the Subcommittee held a hearing on the
bill. On March 11, 2020, the Natural Resources Committee met to
consider the bill. The Subcommittee was discharged by unanimous
consent. Chair Raul M. Grijalva (D-AZ) offered an amendment in
the nature of a substitute. Chair Grijalva offered an amendment
designated Grijalva #1 to the amendment in the nature of a
substitute. The amendment was agreed to by unanimous consent.
The amendment in the nature of a substitute, as amended, was
agreed to by unanimous consent. The bill, as amended, was
adopted and ordered favorably reported to the House of
Representatives by unanimous consent.
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress--the following hearing was used to develop or
consider H.R. 5126: legislative hearing by the Subcommittee on
Water, Oceans, and Wildlife held on January 14, 2020.
Section-by-Section Analysis
Section 1. Short title
Section 2. Sense of Congress
This section expresses the sense of Congress that
commercial and recreational fishers should use venting tools or
descending devices to release fish exhibiting signs of
barotrauma, and that the Secretary of Commerce and the Gulf of
Mexico Fishery Management Council (Gulf Council) should develop
educational materials on the proper use of such tools and
outreach materials encouraging their use.
Section 3. Required possession of descending devices
This section amends the Magnuson-Stevens Fishery
Conservation and Management Act (MSA) to make it unlawful for a
person on a commercial or recreational vessel to fish for reef
fish in the Gulf of Mexico Exclusive Economic Zone (EEZ)
without possessing a venting tool or a descending device that
is rigged and ready for use while fishing. This requirement
takes effect one year after enactment and expires four years
after that.
Section 4. Improving discard mortality data
This section directs the Secretary of Commerce to enter
into an agreement with the National Academy of Sciences to
conduct a study and produce a report on discard mortality in
Gulf of Mexico reef fish fisheries, assessing gaps and biases
in reporting of discards, uncertainty and likely impacts of
such uncertainty, the effectiveness and usage rates of
barotrauma-reducing devices, and providing recommendations for
future research and standardization of reporting of discards.
This section directs the Gulf Council and Secretary of Commerce
to develop guidance for minimum standards for quantifying and
reporting discards and associated mortality in the Gulf of
Mexico Reef Fish Fishery Management Plan and to develop a plan
to assess and monitor the effectiveness and usage of
barotrauma-reducing devices.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 25, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5126, the DESCEND
Act of 2020.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
When people are fishing they often have to discard some of
the fish they catch for various regulatory and economic
reasons. Improperly discarding fish can harm them by causing
barotrauma (injuries related to the rapid change in water
pressure on their bodies), which can lead to increased
mortality for the discarded fish. H.R. 5126 would make it
unlawful to fish, commercially or recreationally, for reef fish
in the Gulf of Mexico without a device to safely return
discarded fish to the water at a depth sufficient for the fish
to recover from barotrauma. The requirement would take effect
one year after enactment and would lapse five years after
enactment.
H.R. 5126 would create new civil penalties for violating
that requirement. Any fines collected under the bill would be
recorded in the budget as revenues. CBO estimates that enacting
the provision would result in an insignificant increase in
revenues over the 2020-2030 period because few cases would
likely be affected.
The bill also would direct the National Oceanic and
Atmospheric Administration (NOAA) and the National Academies of
Science to study and report to the Congress on the mortality of
discarded fish in the Gulf of Mexico reef fisheries. Following
that study, NOAA and the Gulf of Mexico Fishery Management
Council would be required to create new guidance for collecting
information and monitoring the effectiveness of barotrauma
reducing devices. Using information on the cost of similar
studies, CBO estimates that implementing those requirements
would cost less than $500,000 over the 2020-2025 period. Such
spending would be subject to the availability of appropriated
funds.
H.R. 5126 would impose a private-sector mandate as defined
in the Unfunded Mandates Reform Act (UMRA) by requiring
commercial and recreational boats fishing for reef fish in the
Gulf of Mexico Exclusive Economic Zone to have a device to
safely return discarded fish to the water at an appropriate
depth for survival. CBO estimates that the cost of complying
with the mandate would not exceed the annual threshold
established in UMRA for private-sector mandates ($168 million,
in 2020, adjusted annually for inflation).
Using data from NOAA and industry experts, CBO estimates
that roughly 30,000 fishing vessels (commercial and
recreational) would be required to have the devices on board.
CBO estimates that the cost of complying with the requirement
would total less than $2 million in the first year and less
than that in subsequent years because only a small number of
devices would probably need to be replaced in any single year.
The bill would not impose intergovernmental mandates as
defined in UMRA.
The CBO staff contact for this estimate is Robert Reese
(for federal costs) and Lilia Ledezma (for mandates). The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill are to require individuals fishing for
Gulf reef fish to use certain descending devices.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
According to CBO, H.R. 5126 would impose a private-sector
mandate as defined in the Unfunded Mandates Reform Act (UMRA)
by requiring commercial and recreational boats fishing for reef
fish in the Gulf of Mexico EEZ to have a device to safely
return discarded fish to the water at an appropriate depth for
survival. CBO estimates that the cost of complying with the
mandate would not exceed the annual threshold established in
UMRA for private-sector mandates ($168 million, in 2020,
adjusted annually for inflation). According to CBO, the bill
would not impose intergovernmental mandates as defined in UMRA.
CBO's full analysis is reproduced above.
Existing Programs
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local, or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act
may be cited as the ``Magnuson-Stevens Fishery Conservation and
Management Act''.
TABLE OF CONTENTS
Sec. 2. Findings, purposes, and policy.
* * * * * * *
TITLE III--NATIONAL FISHERY MANAGEMENT PROGRAM
Sec. 301. National standards for fishery conservation and management.
Sec. 302. Regional fishery management councils.
Sec. 303. Contents of fishery management plans.
Sec. 304. Action by the Secretary.
[Sec. 305. Implementation of fishery management plans.
[Sec. 306. State jurisdiction.
[Sec. 307. Prohibited acts.
[Sec. 308. Civil penalties and permit sanctions.
[Sec. 309. Criminal offenses.
[Sec. 310. Civil forfeitures.
[Sec. 311. Enforcement.
[Sec. 312. Effective date of certain provisions.
[Sec. 313. North Pacific fisheries research plan.
[Sec. 314. Northwest Atlantic Oceans Fisheries Reinvestment Program.
[Sec. 312. Transition to sustainable fisheries.
[Sec. 313. North Pacific fisheries conservation.
[Sec. 314. Northwest Atlantic Ocean fisheries reinvestment program.]
Sec. 305. Other requirements and authority.
Sec. 306. State jurisdiction.
Sec. 307. Prohibited acts.
Sec. 308. Civil penalties and permit sanctions.
Sec. 309. Criminal offenses.
Sec. 310. Civil forfeitures.
Sec. 311. Enforcement.
Sec. 312. Transition to sustainable fisheries.
Sec. 313. North Pacific fisheries conservation.
Sec. 314. Northwest Atlantic Ocean fisheries reinvestment program.
Sec. 315. Regional Coastal Disaster Assistance, Transition, and Recovery
Program.
Sec. 316. Bycatch Reduction Engineering Program.
Sec. 317. Shark Feeding.
Sec. 318. Cooperative Research and Management Program.
Sec. 319. Herring Study.
Sec. 320. Restoration Study.
Sec. 321. Required possession of descending devices.
* * * * * * *
TITLE III--NATIONAL FISHERY MANAGEMENT PROGRAM
* * * * * * *
SEC. 308. CIVIL PENALTIES AND PERMIT SANCTIONS.
(a) Assessment of Penalty.--Any person who is found by the
Secretary, after notice and an opportunity for a hearing in
accordance with section 554 of title 5, United States Code, to
have committed an act prohibited by section 307 or section 321
shall be liable to the United States for a civil penalty. The
amount of the civil penalty shall not exceed $100,000 for each
violation. Each day of a continuing violation shall constitute
a separate offense. The amount of such civil penalty shall be
assessed by the Secretary, or his designee, by written notice.
In determining the amount of such penalty, the Secretary shall
take into account the nature, circumstances, extent, and
gravity of the prohibited acts committed and, with respect to
the violator, the degree of culpability, any history of prior
offenses, and such other matters as justice may require. In
assessing such penalty the Secretary may also consider any
information provided by the violator relating to the ability of
the violator to pay,Provided, That the information is served on
the Secretary at least 30 days prior to an administrative
hearing.
(b) Review of Civil Penalty.--Any person against whom a civil
penalty is assessed under subsection (a) or against whom a
permit sanction is imposed under subsection (g) (other than a
permit suspension for nonpayment of penalty or fine) may obtain
review thereof in the United States district court for the
appropriate district by filing a complaint against the
Secretary in such court within 30 days from the date of such
order. The Secretary shall promptly file in such court a
certified copy of the record upon which such violation was
found or such penalty imposed, as provided in section 2112 of
title 28, United States Code. The findings and order of the
Secretary shall be set aside by such court if they are not
found to be supported by substantial evidence, as provided in
section 706(2) of title 5, United States Code.
(c) Action Upon Failure To Pay Assessment.--If any person
fails to pay an assessment of a civil penalty after it has
become a final and unappealable order, or after the appropriate
court has entered final judgment in favor of the Secretary, the
Secretary shall refer the matter to the Attorney General of the
United States, who shall recover the amount assessed in any
appropriate district court of the United States. In such
action, the validity and appropriateness of the final order
imposing the civil penalty shall not be subject to review.
(d) In Rem Jurisdiction.--A fishing vessel (including its
fishing gear, furniture, appurtenances, stores, and cargo) used
in the commission of an act prohibited by section 307 shall be
liable in rem for any civil penalty assessed for such violation
under section 308 and may be proceeded against in any district
court of the United States having jurisdiction thereof. Such
penalty shall constitute a maritime lien on such vessel which
may be recovered in an action in rem in the district court of
the United States having jurisdiction over the vessel.
(e) Compromise or Other Action by Secretary.--The Secretary
may compromise, modify, or remit, with or without conditions,
any civil penalty which is subject to imposition or which has
been imposed under this section.
(f) Subpenas.--For the purposes of conducting any hearing
under this section, the Secretary may issue subpenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and may administer
oaths. Witnesses summoned shall be paid the same fees and
mileage that are paid to witnesses in the courts of the United
States. In case of contempt or refusal to obey a subpena served
upon any person pursuant to this subsection, the district court
of the United States for any district in which such person is
found, resides, or transacts business, upon application by the
United States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to appear
and give testimony before the Secretary or to appear and
produce documents before the Secretary, or both, and any
failure to obey such order of the court may be punished by such
court as a contempt thereof.
(g) Permit Sanctions.--(1) In any case in which (A) a vessel
has been used in the commission of an act prohibited under
section 307, (B) the owner or operator of a vessel or any other
person who has been issued or has applied for a permit under
this Act has acted in violation of section 307, (C) any amount
in settlement of a civil forfeiture imposed on a vessel or
other property, or any civil penalty or criminal fine imposed
on a vessel or owner or operator of a vessel or any other
person who has been issued or has applied for a permit under
any marine resource law enforced by the Secretary has not been
paid and is overdue, or (D) any payment required for observer
services provided to or contracted by an owner or operator who
has been issued a permit or applied for a permit under any
marine resource law administered by the Secretary has not been
paid and is overdue, the Secretary may--
(i) revoke any permit issued with respect to such
vessel or person, with or without prejudice to the
issuance of subsequent permits;
(ii) suspend such permit for a period of time
considered by the Secretary to be appropriate;
(iii) deny such permit; or
(iv) impose additional conditions and restrictions on
any permit issued to or applied for by such vessel or
person under this Act and, with respect to foreign
fishing vessels, on the approved application of the
foreign nation involved and on any permit issued under
that application.
(2) In imposing a sanction under this subsection, the
Secretary shall take into account--
(A) the nature, circumstances, extent, and gravity of
the prohibited acts for which the sanction is imposed;
and
(B) with respect to the violator, the degree of
culpability, any history of prior offenses, and such
other matters as justice may require.
(3) Transfer of ownership of a vessel, by sale or otherwise,
shall not extinguish any permit sanction that is in effect or
is pending at the time of transfer of ownership. Before
executing the transfer of ownership of a vessel, by sale or
otherwise, the owner shall disclose in writing to the
prospective transferee the existence of any permit sanction
that will be in effect or pending with respect to the vessel at
the time of the transfer.
(4) In the case of any permit that is suspended under this
subsection for nonpayment of a civil penalty or criminal fine,
the Secretary shall reinstate the permit upon payment of the
penalty or fine and interest thereon at the prevailing rate.
(5) No sanctions shall be imposed under this subsection
unless there has been a prior opportunity for a hearing on the
facts underlying the violation for which the sanction is
imposed, either in conjunction with a civil penalty proceeding
under this section or otherwise.
[Five years after the date of enactment of this Act, section
3(e)(2) of H.R. 5126 (as reported) provides for an amendment to
section 308(a) of the Magnuson-Stevens Fishery Conservation and
Management Act. On such date, section 308(a) of such Act (as so
amended by subsections (b) and (e)(2) of section 3 of H.R.
5126, as reported) is amended as follows:]
SEC. 308. CIVIL PENALTIES AND PERMIT SANCTIONS.
(a) Assessment of Penalty.--Any person who is found by the
Secretary, after notice and an opportunity for a hearing in
accordance with section 554 of title 5, United States Code, to
have committed an act prohibited by section 307 [or section
321] shall be liable to the United States for a civil penalty.
The amount of the civil penalty shall not exceed $100,000 for
each violation. Each day of a continuing violation shall
constitute a separate offense. The amount of such civil penalty
shall be assessed by the Secretary, or his designee, by written
notice. In determining the amount of such penalty, the
Secretary shall take into account the nature, circumstances,
extent, and gravity of the prohibited acts committed and, with
respect to the violator, the degree of culpability, any history
of prior offenses, and such other matters as justice may
require. In assessing such penalty the Secretary may also
consider any information provided by the violator relating to
the ability of the violator to pay,Provided, That the
information is served on the Secretary at least 30 days prior
to an administrative hearing.
(b) Review of Civil Penalty.--Any person against whom a civil
penalty is assessed under subsection (a) or against whom a
permit sanction is imposed under subsection (g) (other than a
permit suspension for nonpayment of penalty or fine) may obtain
review thereof in the United States district court for the
appropriate district by filing a complaint against the
Secretary in such court within 30 days from the date of such
order. The Secretary shall promptly file in such court a
certified copy of the record upon which such violation was
found or such penalty imposed, as provided in section 2112 of
title 28, United States Code. The findings and order of the
Secretary shall be set aside by such court if they are not
found to be supported by substantial evidence, as provided in
section 706(2) of title 5, United States Code.
(c) Action Upon Failure To Pay Assessment.--If any person
fails to pay an assessment of a civil penalty after it has
become a final and unappealable order, or after the appropriate
court has entered final judgment in favor of the Secretary, the
Secretary shall refer the matter to the Attorney General of the
United States, who shall recover the amount assessed in any
appropriate district court of the United States. In such
action, the validity and appropriateness of the final order
imposing the civil penalty shall not be subject to review.
(d) In Rem Jurisdiction.--A fishing vessel (including its
fishing gear, furniture, appurtenances, stores, and cargo) used
in the commission of an act prohibited by section 307 shall be
liable in rem for any civil penalty assessed for such violation
under section 308 and may be proceeded against in any district
court of the United States having jurisdiction thereof. Such
penalty shall constitute a maritime lien on such vessel which
may be recovered in an action in rem in the district court of
the United States having jurisdiction over the vessel.
(e) Compromise or Other Action by Secretary.--The Secretary
may compromise, modify, or remit, with or without conditions,
any civil penalty which is subject to imposition or which has
been imposed under this section.
(f) Subpenas.--For the purposes of conducting any hearing
under this section, the Secretary may issue subpenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and may administer
oaths. Witnesses summoned shall be paid the same fees and
mileage that are paid to witnesses in the courts of the United
States. In case of contempt or refusal to obey a subpena served
upon any person pursuant to this subsection, the district court
of the United States for any district in which such person is
found, resides, or transacts business, upon application by the
United States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to appear
and give testimony before the Secretary or to appear and
produce documents before the Secretary, or both, and any
failure to obey such order of the court may be punished by such
court as a contempt thereof.
(g) Permit Sanctions.--(1) In any case in which (A) a vessel
has been used in the commission of an act prohibited under
section 307, (B) the owner or operator of a vessel or any other
person who has been issued or has applied for a permit under
this Act has acted in violation of section 307, (C) any amount
in settlement of a civil forfeiture imposed on a vessel or
other property, or any civil penalty or criminal fine imposed
on a vessel or owner or operator of a vessel or any other
person who has been issued or has applied for a permit under
any marine resource law enforced by the Secretary has not been
paid and is overdue, or (D) any payment required for observer
services provided to or contracted by an owner or operator who
has been issued a permit or applied for a permit under any
marine resource law administered by the Secretary has not been
paid and is overdue, the Secretary may--
(i) revoke any permit issued with respect to such
vessel or person, with or without prejudice to the
issuance of subsequent permits;
(ii) suspend such permit for a period of time
considered by the Secretary to be appropriate;
(iii) deny such permit; or
(iv) impose additional conditions and restrictions on
any permit issued to or applied for by such vessel or
person under this Act and, with respect to foreign
fishing vessels, on the approved application of the
foreign nation involved and on any permit issued under
that application.
(2) In imposing a sanction under this subsection, the
Secretary shall take into account--
(A) the nature, circumstances, extent, and gravity of
the prohibited acts for which the sanction is imposed;
and
(B) with respect to the violator, the degree of
culpability, any history of prior offenses, and such
other matters as justice may require.
(3) Transfer of ownership of a vessel, by sale or otherwise,
shall not extinguish any permit sanction that is in effect or
is pending at the time of transfer of ownership. Before
executing the transfer of ownership of a vessel, by sale or
otherwise, the owner shall disclose in writing to the
prospective transferee the existence of any permit sanction
that will be in effect or pending with respect to the vessel at
the time of the transfer.
(4) In the case of any permit that is suspended under this
subsection for nonpayment of a civil penalty or criminal fine,
the Secretary shall reinstate the permit upon payment of the
penalty or fine and interest thereon at the prevailing rate.
(5) No sanctions shall be imposed under this subsection
unless there has been a prior opportunity for a hearing on the
facts underlying the violation for which the sanction is
imposed, either in conjunction with a civil penalty proceeding
under this section or otherwise.
* * * * * * *
SEC. 321. REQUIRED POSSESSION OF DESCENDING DEVICES.
(a) Require Gear in the Gulf Reef Fish Fishery.--It shall be
unlawful for a person on board a commercial or recreational
vessel to fish for Gulf reef fish in the Gulf of Mexico
Exclusive Economic Zone without possessing on board the vessel
a venting tool or a descending device that is rigged and ready
for use while fishing is occurring.
(b) Savings Clause.--No provision of this section shall be
interpreted to affect any program or activity carried out by
the Gulf Coast Ecosystem Restoration Council established by the
Resources and Ecosystems Sustainability, Tourist Opportunities,
and Revived Economies of the Gulf Coast States Act of 2012 (33
U.S.C. 1321 note), or any project contained in an approved
Restoration Plan developed by any Natural Resources Damage
Assessment Trustee Implementation Group to reduce post-release
mortality from barotrauma in Gulf of Mexico Reef Fish
Recreational Fisheries.
(c) Definitions.--In this section:
(1) Descending device.--The term ``descending
device'' means an instrument that--
(A) will release fish at a depth sufficient
for the fish to be able to recover from the
effects of barotrauma;
(B) 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; and
(C) is capable of--
(i) releasing the fish automatically;
(ii) releasing the fish by actions of
the operator of the device; or
(iii) allowing the fish to escape on
its own.
(2) Venting tool.--The term ``venting tool'' has the
meaning given to it by the Gulf of Mexico Fishery
Management Council.
(3) Gulf reef fish.--The term ``Gulf reef fish''
means any fish chosen by the Gulf of Mexico Fishery
Management Council that is in the reef Fishery
Management Plan for the purposes of this Act.
[Section 3(a) of H.R. 5126 (as reported) provides for an
amendment to add section 321 at the end of title III of the
Magnuson-Stevens Fishery Conservation and Management Act (shown
above in italic). Five years after the date of enactment of
this Act, section 3(e)(1) and (3) of H.R. 5126 (as reported)
provides for amendments to repeal section 321 of the Magnuson-
Stevens Fishery Conservation and Management Act (and the item
relating to such section in the table of contents). On such
date, section 321 of such Act (as added by section 3(a) of H.R.
5126, as reported) is repealed as follows:]
[SEC. 321. REQUIRED POSSESSION OF DESCENDING DEVICES.
[(a) Require Gear in the Gulf Reef Fish Fishery.--It shall be
unlawful for a person on board a commercial or recreational
vessel to fish for Gulf reef fish in the Gulf of Mexico
Exclusive Economic Zone without possessing on board the vessel
a venting tool or a descending device that is rigged and ready
for use while fishing is occurring.
[(b) Savings Clause.--No provision of this section shall be
interpreted to affect any program or activity carried out by
the Gulf Coast Ecosystem Restoration Council established by the
Resources and Ecosystems Sustainability, Tourist Opportunities,
and Revived Economies of the Gulf Coast States Act of 2012 (33
U.S.C. 1321 note), or any project contained in an approved
Restoration Plan developed by any Natural Resources Damage
Assessment Trustee Implementation Group to reduce post-release
mortality from barotrauma in Gulf of Mexico Reef Fish
Recreational Fisheries.
[(c) Definitions.--In this section:
[(1) Descending device.--The term ``descending
device'' means an instrument that--
[(A) will release fish at a depth sufficient
for the fish to be able to recover from the
effects of barotrauma;
[(B) 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; and
[(C) is capable of--
[(i) releasing the fish
automatically;
[(ii) releasing the fish by actions
of the operator of the device; or
[(iii) allowing the fish to escape on
its own.
[(2) Venting tool.--The term ``venting tool'' has the
meaning given to it by the Gulf of Mexico Fishery
Management Council.
[(3) Gulf reef fish.--The term ``Gulf reef fish''
means any fish chosen by the Gulf of Mexico Fishery
Management Council that is in the reef Fishery
Management Plan for the purposes of this Act.]
* * * * * * *
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