Rule2021-16685
Atlantic Highly Migratory Species; General Category Restricted-Fishing Days
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 9, 2021
Effective
August 9, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This final rule sets Atlantic bluefin tuna (BFT) General category restricted-fishing days (RFDs) for the 2021 fishing year; clarifies the regulations regarding applicability of RFDs to Highly Migratory Species (HMS) Charter/Headboat permitted vessels; and corrects references to the Atlantic Tunas General category permit in a section of the Atlantic HMS regulations. This final rule establishes RFDs for specific days during the months of September through November 2021. On an RFD, Atlantic Tunas General category permitted vessels may not fish for (including catch-and-release or tag-and-release fishing), possess, retain, land, or sell BFT. On RFDs, persons aboard HMS Charter/Headboat permitted vessels with a commercial sale endorsement are prohibited from fishing commercially for BFT. Persons aboard all HMS Charter/Headboat permitted vessels can fish recreationally for BFT under the applicable Angling category restrictions and retention limits.
Full Text
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<title>Federal Register, Volume 86 Issue 150 (Monday, August 9, 2021)</title>
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[Federal Register Volume 86, Number 150 (Monday, August 9, 2021)]
[Rules and Regulations]
[Pages 43421-43428]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16685]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 210730-0155]
RIN 0648-BK37
Atlantic Highly Migratory Species; General Category Restricted-
Fishing Days
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule sets Atlantic bluefin tuna (BFT) General
category restricted-fishing days (RFDs) for the 2021 fishing year;
clarifies the regulations regarding applicability of RFDs to Highly
Migratory Species (HMS) Charter/Headboat permitted vessels; and
corrects references to the Atlantic Tunas General category permit in a
section of the Atlantic HMS regulations. This final rule establishes
RFDs for specific days during the months of September through November
2021. On an RFD, Atlantic Tunas General category permitted vessels may
not fish for (including catch-and-release or tag-and-release fishing),
possess, retain, land, or sell BFT. On RFDs, persons aboard HMS
Charter/Headboat permitted vessels with a commercial sale endorsement
are prohibited from fishing commercially for BFT. Persons aboard all
HMS Charter/Headboat permitted vessels can fish recreationally for BFT
under the applicable Angling category restrictions and retention
limits.
DATES: This final rule is effective on August 9, 2021.
ADDRESSES: Copies of this rule and supporting documents, including the
Final Regulatory Flexibility Analysis (FRFA) for this action, are
available from the HMS Management Division website at <a href="https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species">https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species</a> or by
contacting Larry Redd at <a href="/cdn-cgi/l/email-protection#8de1ecfffff4a3ffe8e9e9cde3e2ececa3eae2fb"><span class="__cf_email__" data-cfemail="eb878a999992c5998e8f8fab85848a8ac58c849d">[email protected]</span></a> or 301-427-8503.
FOR FURTHER INFORMATION CONTACT: Larry Redd, Jr., <a href="/cdn-cgi/l/email-protection#8ee2effcfcf7a0fcebeaeacee0e1efefa0e9e1f8"><span class="__cf_email__" data-cfemail="c6aaa7b4b4bfe8b4a3a2a286a8a9a7a7e8a1a9b0">[email protected]</span></a>,
301-427-8503, or Sarah McLaughlin, <a href="/cdn-cgi/l/email-protection#89fae8fbe8e1a7e4eae5e8fceee1e5e0e7c9e7e6e8e8a7eee6ff"><span class="__cf_email__" data-cfemail="9ae9fbe8fbf2b4f7f9f6fbeffdf2f6f3f4daf4f5fbfbb4fdf5ec">[email protected]</span></a>, 978-281-
9260.
SUPPLEMENTARY INFORMATION: Atlantic HMS fisheries, including BFT
fisheries, are managed under the authority of the Atlantic Tunas
Convention Act (ATCA;
[[Page 43422]]
16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.). The
2006 Consolidated Atlantic HMS Fishery Management Plan (2006
Consolidated HMS FMP) and its amendments are implemented by regulations
at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota,
recommended by the International Commission for the Conservation of
Atlantic Tunas (ICCAT) and as implemented by the United States, among
the various domestic fishing categories per the allocations established
in the 2006 Consolidated HMS FMP and its amendments. Among other
restrictions and retention limits, section 635.23 specifies the
retention limit provisions for Atlantic Tunas General category
permitted vessels and HMS Charter/Headboat permitted vessels, including
those applicable to persons aboard such permitted vessels on RFDs and
on days other than RFDs.
Background
Specific information regarding RFDs, requests for their resumed
use, the current U.S. quota and General category subquotas, and the
need to clarify the regulations regarding the applicability of RFDs to
HMS Charter/Headboat permitted vessels, was provided in the preamble to
the proposed rule (86 FR 25992, May 12, 2021) and is not repeated here.
As described in the proposed rule, NMFS undertook this rulemaking
to address and avoid repetition of certain issues that affected the
General category BFT fishery in 2019 and 2020 and earlier. These issues
include the shortened time to fish under the General category subquotas
that occurs when the quota is filled quickly, increasing numbers of BFT
that are landed but not sold to dealers because of market gluts, and
the resulting decreased price of BFT.
The comment period for the proposed rule closed on June 11, 2021.
NMFS received 67 written comments, including comments from commercial
and recreational fishermen, Atlantic tuna dealers, and the general
public, as well as oral comments at a public webinar and at the HMS
Advisory Panel meeting and public comment sessions at that meeting. The
comments received, and responses to those comments, are summarized
below in the Response to Comments section.
After considering public comments on the proposed rule in light of
the management goals of this action, NMFS decided to implement the RFD
schedule as proposed (except for changing the start date of the first
RFD to account for the date of publication of this final rule).
Compared to the fishery in 2019 and 2020, implementing RFDs should slow
the rate of landings and extend fishing opportunities for General
category permit holders through a greater portion of the subquota
periods while also addressing the issues mentioned above. As such, this
final rule establishes RFDs for the 2021 BFT fishing year for the
General category and makes minor revisions in the HMS regulations at 50
CFR part 635. As described below, except for changing the start date of
the first RFD to account for the date of publication of this final
rule, no changes were made from the proposed rule. Implementing this
RFD schedule, with the ability to waive scheduled RFDs, would slow the
rate of landings to provide available quota throughout a longer
duration of the General category subquota periods while providing
reasonable fishing opportunities, including some fishing tournament
opportunities, for all General category participants.
Specifically, NMFS sets RFDs for the 2021 fishing year on the
following days: All Tuesdays, Fridays, and Saturdays from September 3
through November 30, 2021. On an RFD, Atlantic Tunas General category
permitted vessels are prohibited from fishing for (including catch-and-
release and tag-and-release fishing), possessing, retaining, landing,
or selling BFT. On these designated RFDs, persons aboard HMS Charter/
Headboat permitted vessels with a commercial sale endorsement also are
prohibited from fishing commercially for BFT. Persons aboard all HMS
Charter/Headboat permitted vessels can fish recreationally for BFT
under the applicable Angling category restrictions and retention
limits.
NMFS may waive previously scheduled RFDs under certain
circumstances. Consistent with Sec. 635.23(a)(4), NMFS may waive an
RFD by adjusting the daily BFT retention limit from zero up to five on
specified RFDs, after considering the inseason adjustment determination
criteria at Sec. 635.27(a)(8). This would include, among other things,
review of dealer reports, daily landing trends, and the availability of
BFT on fishing grounds. NMFS will announce any such waiver by filing a
retention limit adjustment with the Office of the Federal Register for
publication. Such adjustments will be effective no less than 3 calendar
days after the date of filing for public inspection with the Office of
the Federal Register. NMFS also may waive previously designated RFDs
effective upon closure of the General category fishery so that persons
aboard vessels permitted in the General category may conduct tag-and-
release fishing for BFT as allowable under Sec. 635.26(a). However,
should NMFS waive previously designated RFDs while the General category
fishery is open, persons aboard vessels permitted in the General
category may conduct catch and release or tag-and-release fishing for
BFT as allowable under Sec. 635.26(a). NMFS will not modify RFDs set
by this final rule during the fishing year in other ways (such as
changing an RFD from one date to another or adding RFDs) other than
waiving designated RFDs based on the circumstances described above.
This final rule also clarifies existing regulatory text at Sec.
635.23(c) about the applicability of RFDs to HMS Charter/Headboat
permitted vessels, and makes a minor change to correct two permit title
references in Sec. 635.23 of the regulations.
Response to Comments
All written comments can be found at <a href="http://www.regulations.gov">www.regulations.gov</a> by
searching for NOAA-NMFS-2021-0040. Below, NMFS summarizes and responds
to all comments made specifically on the proposed rule during the
comment period.
Comment 1: NMFS received comments from General category fishermen,
charter/headboat fishermen, and tournament operators both in support of
and in opposition to General category RFDs for the 2021 fishing year.
Most commenters in support of resuming the use of RFDs noted that RFDs
should prevent market gluts and should lengthen the General category
season within the subquota time-periods and the season overall. These
commenters felt that lengthening the season into the fall/winter months
when BFT are of better quality would result in higher prices for
fishermen. Other commenters expressed concern that the proposed rule
seemed to be economic in nature and would inappropriately manipulate
the market. Additionally, several commenters opposed to RFDs expressed
concern that this action is premature due to the unique impacts of
COVID-19 in 2020, noting that global markets and economies are
stabilizing and similar impacts should not be expected in 2021.
Furthermore, some commenters expressed concern that RFDs would not
result in extending the fishery, but instead would lead to a derby
fishery resulting in flooded markets, lower BFT prices, and safety-at-
sea concerns associated with fishing in bad weather conditions.
[[Page 43423]]
Response: RFDs can slow the rate of General category landings and
extend fishing opportunities through a greater portion of the General
category time-period subquotas. This final rule is not driven by purely
economic-related objectives. The primary objective of the final rule is
to slow the harvest rate of BFT in order to extend the period of time
that the fishery may remain open to provide fishing opportunities
longer in the season. The proposed rule did discuss past market
conditions and recognized that this action should also help prevent
large numbers of BFT from entering the market at the same time, and
would potentially alleviate some negative economic impacts experienced
by General category and Charter/Headboat permitted fishermen who could
not find buyers for their BFT. This was not the primary objective of
the rule, however. The primary objective of this action is to slow the
rate of General category landings to extend fishing opportunities
through a greater portion of the subquota periods. NMFS notes that BFT
prices generally increase over the summer and fall period. NMFS
acknowledges the unique impacts of COVID-19 in 2020; however, NMFS has
observed the issues that contribute to the need for this action for
several years, and those issues were exacerbated in both 2019 and 2020.
Specifically, over the past several years, landings have been highest
from mid-August through November, contributing to derby-like
conditions, contributing to market gluts, shortening the time it takes
to fill relevant subquotas, and resulting in inseason closures earlier
than desired. If NMFS does not take action this year, it is likely
these trends would continue. Overall, NMFS believes that by spreading
out fishing effort over a longer period of time, safety-at-sea issues
should decrease, as the conditions that encourage derby-like behavior
would be diminished. NMFS recognizes that the weather is unpredictable,
particularly in the second half of October and early November, and that
poor weather may limit participation without the need for additional
RFDs during this part of the season. Should BFT landings and catch
rates merit waiving RFDs, NMFS could adjust the daily retention limit
on waived days with a minimum 3-day notification to fishermen, by
filing such an adjustment in the Federal Register, under 50 CFR
635.23(a)(4).
Comment 2: NMFS received comments both supporting the proposed
Tuesday, Friday, and Saturday schedule of RFDs, and opposing the
proposed schedule. Some commenters suggested modifications to the
proposed schedule, including implementing RFDs earlier in June and/or
avoiding weekends. One commenter objected to the proposed RFD schedule
while also suggesting to start RFDs in September. Some commenters noted
that Fridays and Saturdays are the days on which the demand to buy and
sell BFT is greatest.
Response: NMFS' proposed schedule of RFDs was based on a review of
average daily catch rate data for recent years and a review of past
years' RFD schedules and how they worked to extend the use of the
General category quota. The Tuesday, Friday, and Saturday RFD schedule
allows for two-consecutive-day periods twice each week (Sunday-Monday;
Wednesday-Thursday) for General category and Charter/Headboat permitted
vessels with a commercial sale endorsement to fish for and sell BFT.
NMFS believes that two-consecutive-day periods twice each week would
allow BFT products to move through the market while also allowing some
commercial fishing activity to occur each weekend (i.e., Sundays).
Given that the proposed rule published in May, and the comment period
ended on June 11, 2021, NMFS could not implement RFDs starting June 1,
2021. However, NMFS is establishing RFDs starting in September, when
catch and landing rates substantially increase, resulting in General
category subquotas being met and closures of applicable General
category time-periods.
NMFS recognizes that many General category fishery participants
would like to maintain the opportunity to fish and sell on Fridays and
weekends. However, NMFS selected Tuesdays, Fridays, and Saturdays based
on input from Atlantic tunas dealers, General category participants,
and members of the Atlantic HMS Advisory Panel. NMFS believes that this
weekly schedule of RFDs should increase the likelihood of pacing
General category landings to extend fishing opportunities through a
greater portion of the subquota periods (similar to some past RFD
schedules that applied in previous fishing years). It would also allow
for two-consecutive-day periods twice each week (Sunday-Monday;
Wednesday-Thursday) for BFT product to move through the market and also
allow for some commercial fishing activity each weekend (i.e., Sunday).
Comment 3: NMFS received several comments from General category and
Charter/Headboat captains expressing support for this action, noting
that RFDs allow Charter/Headboat captains the opportunity to sell fish
on non-RFD days and to continue to charter on RFD days (i.e., under the
Angling category regulations). These captains noted that recreational
trips potentially will have higher catch rates as vessels can fish
without having to compete with commercial fishing vessels.
Response: As described in the proposed rule, resuming RFDs will
allow persons aboard Charter/Headboat permitted vessels with a
commercial sale endorsement the opportunity to fish commercially for
BFT on non-RFDs and to charter on an RFD under the Angling category
restrictions and limits. NMFS recognizes that the use of RFDs may allow
for an increase in recreational catches of BFT on RFDs, but the purpose
of this action is to extend the General category BFT fishery for the
2021 fishing year. Although recreational landings may increase on RFDs,
Charter/Headboat permitted vessels must abide by established retention
limits; thus, NMFS anticipates that recreational landings would remain
within the current annual Angling category quota.
Comment 4: NMFS received comments, from both those in support of
and opposed to RFDs, regarding the potential negative impacts of RFDs
on BFT fishing tournaments. These commenters noted the economic
importance of fishing tournaments on local economies and suggested that
NMFS exempt participants in registered fishing tournaments from the RFD
restrictions or increase the retention limit (i.e., waive RFDs) on
tournament days.
Response: NMFS acknowledges that RFDs that occur on a tournament
date may affect BFT fishing at those tournaments as General category
participants are prohibited from fishing for BFT on RFDs. However, on
an RFD, General category participants may still participate in non-BFT
fishing during the tournament, and may land sharks, swordfish,
billfish, bigeye, albacore, yellowfin, and/or skipjack tunas
recreationally as otherwise permitted. Additionally, on an RFD,
Charter/Headboat permitted vessels may participate recreationally in
HMS fishing tournaments, including for BFT, under the applicable
Angling category restrictions and retention limits. Under the current
regulations, tournament operators are required to register their
tournament with NMFS at least four weeks prior to the start of the
tournament. As such, NMFS is aware of several fishing tournaments that
will likely include BFT that often occur in August through November.
Should a tournament change its dates of operation, NMFS encourages
tournament operators to contact NMFS to update the dates for which
their
[[Page 43424]]
tournament is registered. NMFS does not plan to waive RFDs specifically
to accommodate tournaments, as doing so could eliminate the benefits of
RFDs by allowing General category and Charter/Headboat permitted
vessels with a commercial sale endorsement the opportunity to land and
sell commercial size BFT on those scheduled RFD dates. Furthermore, as
explained above, General category and Charter/Headboat fishermen could
still participate in tournaments during RFDs, albeit with the
additional RFD restrictions and retention limits. NMFS will closely
monitor BFT landings and catch rates and, should NMFS determine that
waiving RFDs is warranted, NMFS could waive an RFD by adjusting the
daily retention limits with a minimum 3-day notification to fishermen,
by filing such an adjustment in the Federal Register, under 50 CFR
635.23(a)(4).
Comment 5: NMFS received several comments suggesting that NMFS
should waive RFDs during HMS registered fishing tournaments because
tournaments are a source of valuable scientific data and information
for BFT.
Response: NMFS understands the importance of fishing tournaments
for the collection of scientific data on catch, effort, and
participants, and the collection of biological samples. The scheduled
RFDs will still allow the opportunity for valuable scientific data
collection as recreational fishing tournaments can still proceed
throughout the year. General category and Charter/Headboat fishermen
could still participate in tournaments during RFDs, consistent with the
applicable retention limits and RFD restrictions. Scientists who
collect biological samples during fishing tournaments could still do
so, even on an RFD, by collecting samples from those fish landed
recreationally (under the Angling category) or as authorized under
exempted fishing permits. NMFS will closely monitor BFT landings and
catch rates and, should NMFS determine that waiving RFDs is warranted,
NMFS could adjust the daily retention limits with a minimum 3-day
notification to fishermen in the Federal Register, under 50 CFR
635.23(a)(4). Without RFDs, subquota time-periods in the later part of
the year often close early, even if BFT are available, which in turn
limits valuable data collection among General category participants.
NMFS believes that extending the fishing year via RFDs and other
inseason actions will benefit scientific data collection by allowing
for collection of data during time-periods when the General category
fishery is otherwise closed.
Comment 6: NMFS received comments of concern that increasing the
General category retention limit from the default of one fish to three
fish to begin the June through August time-period subquota (86 FR
27814, May 24, 2021) was counterproductive to the goal of setting RFDs.
Several commenters requested the use of mechanisms other than RFDs to
extend the fishery, such as maintaining the default retention limit
throughout the season, limiting entry into the fishery, considering
different closure dates at the end of subquota periods, and increasing
the price for fishing permits. These commenters noted that increasing
outreach and education before permit issuance and promoting tagging
could benefit the fishery.
Response: This action focuses on implementing RFDs, as currently
authorized in the regulations, to slow the rate of General category
landings, prevent early closures, and extend fishing opportunities
through a greater portion of the General category time-period subquotas
for the 2021 fishing year. NMFS will continue to use retention limits,
RFDs, and other available management tools to manage the BFT fisheries,
within the available BFT quota and established subquotas. In recent
years, because the rate of landings is typically slow in early June,
NMFS has regularly set the daily retention limit for the beginning of
the June through August period at three fish, following consideration
of the relevant criteria provided under Sec. 635.27(a)(8), including
supporting scientific data collection. As appropriate, NMFS then
typically reduces the limit to the one-fish default level based on
catch rates associated with the various authorized gear types (e.g.,
harpoon, rod and reel) to ensure fishing opportunities in all
respective time-period subquotas and to ensure that the available quota
is not exceeded.
As with other mechanisms mentioned above, RFDs are an available
effort control mechanism that can be used to extend time-period
subquotas and provide additional inseason management flexibility
regarding quota use and distribution and season length. Unlike other
mechanisms, in the current regulations, RFDs may only be used to assist
with the management of the BFT General category fishery (i.e., permit
categories that fish against the General category quota). NMFS is not
considering the use of limited entry for the General category fishery
at this time, although NMFS has used limited entry in other BFT
fisheries, such as the pelagic longline fishery. Throughout the season,
NMFS monitors landings and catch rates and will close the fishery or
modify retention limits as appropriate to ensure the quotas are not
exceeded. NMFS establishes the price of the permits based on the costs
to administer the issuance of the permits; the price of the permits is
not used as a means to limit or reduce entry to the fishery. NMFS will
continue to monitor and evaluate the effectiveness of all these
management measures in the context of current conditions to determine
whether other actions are necessary.
Comment 7: NMFS received comments noting issues with dealer
practices, particularly regarding sale of poor quality BFT, and
requesting that NMFS not resume use of RFDs. Several individuals noted
that if the dealers would like better control over supply and demand
related to state and international markets, those dealers should
continue to limit their own purchases as was done in 2019 and 2020.
Response: NMFS does not control or regulate the activities of
Federal Atlantic tunas dealers regarding the quality of fish sold on
domestic or international markets. Instead, NMFS requires that dealers
obtain a Federal dealer permit to purchase, trade, or barter any HMS
and abide by the regulations under both Sec. 635.4 and Sec. 635.5. As
described in the proposed rule, NMFS received communications from
dealers and fishermen regarding the self-imposed no (or limited)
purchase days in 2019 and 2020. While these actions by dealers may have
prevented an oversupply of BFT on the market and may have lengthened
the time-period for some subquotas, because these actions were not pre-
scheduled or consistently implemented across the fishery, some General
category and Charter/Headboat permitted fishermen experienced negative
impacts, and opportunities may not have been equitably distributed
among all permitted vessels. Thus, NMFS is implementing a schedule of
RFDs to apply consistently across the fishery to ensure that the
General category fishery is extended for a greater portion of the
subquota time-periods. This may have positive impacts for all General
category and Charter/Headboat (commercial) BFT fishery participants by
allowing for more equitable distribution of opportunities.
Comment 8: NMFS received several comments that the proposed action
would disadvantage General category fishermen because Harpoon category
participants can fish for and sell BFT on RFDs. One commenter suggested
that RFDs should apply across all categories.
[[Page 43425]]
Response: NMFS disagrees that this action disadvantages General
category fishermen. As noted above, BFT catch rates have increased over
recent years in the General category, shortening the time to fill
subquotas, resulting in untimely subquota closures and unstable
markets. NMFS believes that this rulemaking will benefit General
category participants by spreading out fishing effort over time, which
would extend fishing opportunities through a greater proportion of the
subquota time-periods. Other categories (e.g., Harpoon, Purse Seine,
Longline, and Trap) are not experiencing these issues because of the
unique characteristics (including gear, timing, and participation) of
those fisheries. As such, at this time, NMFS does not intend to
implement RFDs for any other category.
Comment 9: NMFS received a comment supporting RFDs but expressing
concern regarding the impact of RFDs on General category fishermen
targeting non-BFT.
Response: General category fishermen are still allowed to fish for,
retain, land, and sell non-BFT species on RFDs under the applicable
General category permit restrictions and retention limits. The RFD
prohibition only applies to General category fishermen when fishing for
(including catch-and-release or tag-and-release fishing), possessing,
retaining, landing, or selling BFT.
Comment 10: NMFS received several comments requesting that RFDs be
implemented as a pilot program for 2021 and that NMFS re-evaluate RFDs
for future years.
Response: Due to high landings rates in recent years and the fact
that the fishery has continued to close earlier than desired, and based
on the expectation that landings rates in 2021 will be similar to
landings rates in recent years without additional measures, NMFS is
implementing RFDs for 2021 through this final rule. While NMFS is not
implementing this change as a pilot program, NMFS will continue to
monitor landings rates to determine whether RFDs are necessary in
future fishing years, and will take appropriate action when warranted.
Comment 11: NMFS received several comments from part-time
commercial fishermen noting that this action would have negative
impacts on those fishermen that work other jobs full-time during the
week and supplement their income with weekend fishing trips.
Response: NMFS acknowledges that this action may affect part-time
commercial fishermen who fish on the weekend. Note that NMFS manages
the BFT fishery to allow equitable fishing opportunities for all
participants. Therefore, as described in the proposed rule, and above
in the response to Comment 2, NMFS developed the 2021 RFD schedule to
allow for some commercial fishing activity each weekend by maintaining
Sunday as an open fishing day.
Comment 12: NMFS received several comments noting that the BFT
stock has rebounded and is healthy, and that, therefore, this action is
unwarranted. Additionally, some commenters noted that NMFS is overly
restrictive to BFT fishermen in New England.
Response: NMFS disagrees that this action is unwarranted. The
purpose of this action, consistent with the objectives of the 2006
Consolidated HMS FMP and its amendments and other applicable laws, is
to set a schedule of RFDs for the 2021 fishing year as an effort
control for the General category quota, and to extend General category
fishing opportunities through a greater portion of the General category
time-period subquotas than have been available in recent years. NMFS
does not manage the General category fishery by region. Instead, these
regulations are applicable to all General category permit holders and
Charter/Headboat permitted vessels that fish commercially for BFT.
Regarding the status of BFT, the western Atlantic BFT stock is
assessed by ICCAT. Currently the stock status remains unknown, and, for
2021, ICCAT continues to manage the stock under an interim conservation
and management plan. In 2018, NMFS implemented a final rule that
established the U.S. BFT quota and subquotas consistent with ICCAT
Recommendation 17-06 (83 FR 51391, October 11, 2018). In 2020,
following a stock assessment update, ICCAT adopted Recommendation 20-
06, which maintained the total allowable catch of 2,350 metric tons
(mt) and the associated U.S. quota. As such, as described in Sec.
635.27(a), the current baseline U.S. quota remains 1,247.86 mt (not
including the 25 mt ICCAT allocated to the United States to account for
bycatch of BFT in pelagic longline fisheries in the Northeast Distant
Gear Restricted Area). This action helps manage the BFT fisheries
within that available quota and the category subquotas as established
in existing regulations.
Comment 13: One commenter suggested that NMFS launch an outreach
campaign to the general public regarding the importance of seafood
consumption to improve domestic market conditions.
Response: This comment is outside the scope of this rulemaking,
which pertains only to RFDs. Additionally, NMFS already has an outreach
campaign, titled ``Eat Seafood, America!,'' designed to provide
information about sustainable seafood and the importance of seafood
consumption. More information can be found at <a href="https://www.fisheries.noaa.gov/topic/sustainable-seafood#eat-seafood,-america">https://www.fisheries.noaa.gov/topic/sustainable-seafood#eat-seafood,-america</a>!.
Changes From the Proposed Rule
Except for changing the 2021 RFD schedule start date from July 20,
2021, to September 3, 2021 to accommodate the time needed to fully
consider comments and prepare this final rule, this final rule contains
no changes from the proposed rule.
Classification
The NMFS Assistant Administrator has determined that this final
rule is consistent with the 2006 Consolidated HMS FMP and its
amendments, other provisions of the Magnuson-Stevens Act, ATCA, and
other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator
has determined that there is good cause to waive the 30-day delay in
the date of effectiveness for this final action. Because the fishing
year is already underway, delaying the effectiveness of these
regulations could undermine the purpose of this action to implement a
RFD schedule that would help manage the fishery within the existing
General category subquotas and extending the duration of the fishery
throughout the subquota time-periods. Waiting 30 days to make the rule
effective increases the likelihood of the General category subquotas
being met and exceeded, resulting in inseason closures earlier than
desired.
Implementing RFDs as soon as possible provides NMFS additional
inseason management flexibility. Although the General category has a
relatively large quota for the 2021 fishing year, the General and HMS
Charter/Headboat permit category have the ability to harvest a large
amount of General category quota in a short period of time,
specifically from late July through November. Establishing RFDs during
this time span is essential to extend fishing opportunities within each
subquota time-period while also preventing market gluts, which, in
recent years, have resulted in an increase in the number of BFT that
are landed and not sold and have resulted in lower prices for the BFT
that are sold. Additionally, establishing RFDs earlier in the fishing
year provides better
[[Page 43426]]
business planning opportunities for Atlantic Tunas General category
permittees and HMS Charter/Headboat owners/operators. As such, NMFS
believes that a 30-day delay in setting RFDs would be contrary to the
public interest.
For the reasons described above, the Assistant Administrator finds
good cause to make this rule effective immediately upon publication in
the Federal Register.
A Final Regulatory Flexibility Analysis (FRFA) was prepared for
this rule. The FRFA incorporates the initial regulatory flexibility
analysis (IRFA), a summary of the significant issues raised by the
public comments in response to the IRFA, our responses to those
comments and a summary of the analyses completed to support the action.
The full FRFA is available from NMFS (see ADDRESSES). A summary is
provided below.
Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires
agencies to state the need for and objective of, the final action. The
objective of this final rulemaking is to set a schedule of RFDs for the
2021 fishing year that should slow the rate of General category
landings to extend fishing opportunities through a greater portion of
the subquota periods (similar to past RFD schedules that set RFD
schedules for the fishing year). Additionally, this final rule
clarifies the regulations regarding applicability of RFDs to vessels
permitted in the HMS Charter-Headboat category.
Section 604(a)(2) requires that a FRFA include a summary of
significant issues raised by public comment in response to the IRFA and
a summary of the agency's assessment of such issues, and a statement of
any changes made in the rule as a result of such comments. As described
above, during the public comment period, NMFS received comments both in
support of and opposed to resuming RFDs. No comments specifically
referenced the IRFA, although some comments raised a variety of
economic concerns including whether RFDs would affect the market (see
comments 1 and 7), whether RFDs would affect some parts of the fishery
more than others (see comments 8 and 11), and whether RFDs would
negatively affect tournaments (see comments 4 and 5). NMFS' responses
to those comments are summarized above. After careful consideration of
all the comments received, except for changing the start date of the
first RFD to account for the date of publication of this final rule, no
other changes were made to the proposed rule.
Section 604(a)(3) of the RFA requires NMFS to respond to any
comments filed by the Chief Counsel for Advocacy of the Small Business
Administration (SBA) in response to the proposed rule and provide a
detailed statement of any change made to the proposed rule as a result
of the comments. NMFS did not receive any comments from the Chief
Counsel for Advocacy of the SBA on the proposed rule.
Section 604(a)(4) of the RFA requires agencies to provide an
estimate of the number of small entities to which the rule would apply.
NMFS established a small business size standard of $11 million in
annual gross receipts for all businesses in the commercial fishing
industry (NAICS 11411) for RFA compliance purposes (50 CFR 200.2). The
Small Business Administration (SBA) has established size standards for
all other major industry sectors in the United States, including the
scenic and sightseeing transportation (water) sector (NAICS code
487210), which includes for-hire (charter/party boat) fishing entities.
The SBA has defined a small entity under the scenic and sightseeing
transportation (water) sector as one with average annual receipts
(revenue) of less than $8.0 million. Therefore, NMFS considers all HMS
permit holders, both commercial and for-hire, to be small entities
because they had average annual receipts of less than their respective
sector's standard of $11 million and $8 million. The 2019 total ex-
vessel annual revenue for the BFT fishery was $9.8 million. Since a
small business is defined as having annual receipts not in excess of
$11.0 million, each individual BFT fishing entity would fall within the
small business definition. Thus, all of the entities affected by this
rule are considered to be small entities for the purposes of the RFA.
The numbers of relevant annual Atlantic Tunas or Atlantic HMS permits
as of October 2020 are as follows: 2,645 General category permit
holders and 3,839 HMS Charter/Headboat permit holders, of which 1,681
hold HMS Charter/Headboat permits with a commercial sale endorsement.
Section 604(a)(5) of the RFA requires agencies to describe any new
reporting, record-keeping, and other compliance requirements. This
final rule does not contain any new collection of information,
reporting, or record-keeping requirements. This final rule would set a
schedule of RFDs for 2021 as an effort control for the General category
quota and would clarify existing regulatory text about the
applicability of RFDs to HMS Charter/Headboat permitted vessels.
Section 604(a)(6) of the RFA requires agencies in the FRFA to
describe any steps taken to minimize the significant economic impact on
small entities consistent with the stated objectives of applicable
statutes.
This final rule does not change the U.S. Atlantic BFT quotas or
implement any new management measures not previously considered under
the 2006 Consolidated HMS FMP and its amendments. This final rule will
instead resume the use of RFDs, set a schedule of RFDs for 2021,
clarify existing regulatory text about the applicability of RFDs to HMS
Charter/Headboat permitted vessels, and make a minor change to correct
two permit title references in a section of the regulations. Under the
regulations, when a General category time-period subquota is reached or
projected to be reached, NMFS closes the General category fishery.
Retaining, possessing, or landing BFT under that quota category is
prohibited on and after the effective date and time of a closure notice
for that category, for the remainder of the fishing year, until the
opening of the subsequent quota period or until such date as specified.
In recent years, these closures, if needed, have generally occurred
toward the end of a particular subquota time-period. According to
communications with dealers and fishermen, several of the high-volume
HMS Atlantic tunas dealers in 2019 and 2020 were limiting their
purchases of BFT and buying no or very few BFT (such as harpooned fish
only) on certain days during the beginning portion of the June through
August subquota time-period in order to extend the available quota
until later in the subperiod given market considerations. However,
while these actions may have prevented large numbers of BFT from
entering the market at the same time and may have lengthened the time
before any particular subquota was closed, because these actions were
not pre-scheduled or consistently implemented across the fishery, some
General category and Charter/Headboat permitted fishermen especially
those who could not find buyers for their BFT--experienced negative
impacts. As a result, a number of BFT that normally would have been
sold were not, and opportunities may not have been equitably
distributed among all permitted vessels. Table 1 shows the number and
total metric tons (mt) of BFT that were landed but not sold by
fishermen fishing under the General category quota for 2017 through
2020. The number and weight of unsold BFT has been increasing since
2017 and
[[Page 43427]]
increased substantially (from 20 to 173 BFT and 3.8 to 31.4 mt) between
2019 and 2020.
Table 1--The Number (Count) and Weight (mt) of BFT That Were Landed But
Unsold by General Category Participants by Year
------------------------------------------------------------------------
Weight
Year Count (mt)
------------------------------------------------------------------------
2017.................................................. 0 0
2018.................................................. 14 2.6
2019.................................................. 20 3.8
2020.................................................. 173 31.4
-----------------
Total............................................... 207 37.8
------------------------------------------------------------------------
In addition to reviewing the data regarding the amount of unsold
BFT, NMFS also reviewed the average ex-vessel price. Table 2 shows the
average ex-vessel price per pound of BFT during each General category
subquota time-period for the years 2017 through 2020. On an annual
basis, the ex-vessel price tends to be lower for the June through
August subquota time-period, with an average (2017 through 2020) price
of $6.04, and increases over the summer and fall period ($6.30 for
September period and $6.49 for the October through November period).
NMFS understands that several factors influenced dealers' decisions to
not purchase BFT in 2019 (e.g., fish conditions, daily retention
limits, and market conditions) and that in 2020, the worsening of
global market conditions was an additional factor impacting the number
of BFT unsold. These conditions generally occurred in June through
August 2019, and were repeated in June through August 2020, with
conditions and prices improving by the fall. However, in 2020, the
average price per pound was lower for the June through December
subquota time-periods than in any of the three previous years.
Table 2--Average Ex-Vessel Price per Pound ($) of BFT by General Category Subquota Time-Period
[2017-2020]
----------------------------------------------------------------------------------------------------------------
Subquota time-period
----------------------------------------------------------------
Year January June October
through through September through December
March August November
----------------------------------------------------------------------------------------------------------------
2017........................................... $7.37 $6.72 $7.08 $7.56 $9.83
2018........................................... 7.43 6.92 6.55 7.58 9.56
2019........................................... 6.06 5.61 6.36 5.53 12.25
2020........................................... 6.13 4.91 5.21 5.30 5.76
----------------------------------------------------------------
2017 through 2020 average.................. 6.75 6.04 6.30 6.49 9.35
----------------------------------------------------------------------------------------------------------------
To help address these issues, NMFS is establishing a schedule of
RFDs for the 2021 fishing year that will regulate specific days on
which fishing and sales will not occur. Specifically, the schedule
allows for two-consecutive-day periods twice each week for BFT products
to move through the market while also allowing some commercial fishing
activity to occur each weekend (i.e., Sundays), thus providing
opportunities for participants who may only fish on the weekend.
Because this schedule of RFDs will apply to all participants equally,
NMFS anticipates that this schedule will extend fishing opportunities
through a greater proportion of the subquota time-periods in which they
apply by spreading fishing effort out over time. Furthermore, to the
extent that the ex-vessel revenue for a BFT sold by a General or HMS
Charter/Headboat permitted vessel (with a commercial endorsement) may
be higher when a lower volume of domestically-caught BFT is on the
market at one time, the use of RFDs may result in some increase in BFT
price, and the revenue generated by the General category subquotas
could increase. Thus, although NMFS anticipates that the same overall
amount of the General category quota would be landed and the same
amount of BFT would be landed per vessel, there may be some positive
impacts to the General category and Charter/Headboat (commercial) BFT
fishery. Using RFDs may more equitably distribute fishing opportunities
for longer durations within the subquota time-periods. However, the RFD
schedule may have a negative impact to some General category fishermen
who might only be able to fish on weekends, as Saturdays would be RFDs
through November 30, 2021. To mitigate the loss of fishing days, NMFS
is allowing fishing opportunities to occur on Sundays.
Thus, if NMFS does not implement a schedule of RFDs, as in this
final rule, it is possible that the trends of increasing numbers of
unsold BFT (Table 1) and decreasing ex-vessel prices (Table 2) would
continue. If these trends continue, many participants could continue to
experience negative economic impacts.
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rule. As part of
this rulemaking process, NMFS has prepared a booklet summarizing
fishery information and regulations for Atlantic BFT General category
RFDs for the 2021 fishing year. That booklet notice serves as the small
entity compliance guide. Copies of the compliance guide are available
from NMFS (see ADDRESSES).
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Statistics,
Treaties.
Dated: July 30, 2021.
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 amended
as follows:
[[Page 43428]]
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. In Sec. 635.2, revise the definition of ``Restricted-fishing day
(RFD)'' to read as follows:
Sec. 635.2 Definitions.
* * * * *
Restricted-fishing day (RFD) is a day, beginning at 0000 hours and
ending at 2400 hours local time, during which a person aboard a vessel
issued:
(1) An Atlantic Tunas General category permit may not fish for,
possess, retain, land, or sell a BFT; and
(2) A Charter/Headboat permit with a commercial endorsement may not
fish commercially for BFT under the General category rules, but may
fish for, possess, retain, or land BFT under the Angling category
restrictions and retention limits.
* * * * *
0
3. In Sec. 635.23, revise paragraphs (a)(1) and (3) and (c)(1) through
(3) and add paragraph (c)(4) to read as follows:
Sec. 635.23 Retention limits for bluefin tuna.
* * * * *
(a) * * * (1) No person aboard a vessel that has an Atlantic Tunas
General category permit may possess, retain, land, or sell a BFT in the
school, large school, or small medium size class.
* * * * *
(3) Regardless of the length of a trip, no more than a single day's
retention limit of large medium or giant BFT may be possessed or
retained aboard a vessel that has an Atlantic Tunas General category
permit. On days other than RFDs, when the General category is open, no
person aboard such vessel may continue to fish, and the vessel must
immediately proceed to port, once the applicable limit for large medium
or giant BFT is retained.
* * * * *
(c) * * *
(1) When fishing in the Gulf of Mexico, the restrictions and
retention limits applicable to the Angling category specified in
paragraph (b)(1) of this section apply.
(2) When fishing other than in the Gulf of Mexico when the fishery
for the General category is closed or on an RFD, the restrictions and
retention limits applicable to the Angling category specified in
paragraphs (b)(1) through (b)(3) of this section apply.
(3) When fishing other than in the Gulf of Mexico when the General
category fishery is open and not on an RFD, a person aboard a vessel
that has been issued an HMS Charter/Headboat permit with a commercial
sale endorsement may fish under either the General category
restrictions and retention limits as specified in paragraphs (a)(1)
through (3) of this section or the Angling category restrictions and
retention limits as specified in paragraphs (b)(1) through (3) of this
section. The size category of the first BFT retained will determine
whether the General category or Angling category restrictions and
retention limits apply to the vessel that day.
(4) When fishing other than in the Gulf of Mexico when the General
category fishery is open and not on an RFD, a person aboard a vessel
that has been issued an HMS Charter/Headboat permit without a
commercial sale endorsement permit may only fish for, possess, retain,
or land BFT under the Angling category restrictions and retention
limits as specified in paragraphs (b)(1) through (3) of this section.
* * * * *
[FR Doc. 2021-16685 Filed 8-6-21; 8:45 am]
BILLING CODE 3510-22-P
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