Rule2022-11730
Atlantic Highly Migratory Species (HMS); Atlantic Tunas General Category Restricted-Fishing Days (RFDs)
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
June 1, 2022
Effective
July 1, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This final rule sets Atlantic bluefin tuna (BFT) General category restricted-fishing days (RFDs) for all Tuesdays, Fridays, and Saturdays during the months of July through November 2022. 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 bluefin tuna (BFT). On an RFD, HMS Charter/ Headboat permitted vessels with a commercial sale endorsement also are subject to these restrictions to preclude fishing commercially for BFT under the General category restrictions and retention limits, but such vessels may still fish for, possess, retain, or land BFT when fishing recreationally under applicable HMS Angling category rules. RFDs are designed, in part, to slow the rate of landings and extend fishing opportunities for General category permit holders through a greater portion of the subquota periods. NMFS may waive previously scheduled RFDs under certain circumstances, but will not modify the previously scheduled RFDs during the fishing year in other ways (such as changing an RFD from one date to another, or adding RFDs).
Full Text
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<title>Federal Register, Volume 87 Issue 105 (Wednesday, June 1, 2022)</title>
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[Federal Register Volume 87, Number 105 (Wednesday, June 1, 2022)]
[Rules and Regulations]
[Pages 33056-33063]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11730]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 220524-0121]
RIN 0648-BK99
Atlantic Highly Migratory Species (HMS); Atlantic Tunas General
Category Restricted-Fishing Days (RFDs)
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 all Tuesdays, Fridays, and
Saturdays during the months of July through November 2022. 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 bluefin tuna (BFT). On an RFD, HMS Charter/
Headboat permitted vessels with a commercial sale endorsement also are
subject to these restrictions to preclude fishing commercially for BFT
under the General category restrictions and retention limits, but such
vessels may still fish for, possess, retain, or land BFT when fishing
recreationally under
[[Page 33057]]
applicable HMS Angling category rules. RFDs are designed, in part, to
slow the rate of landings and extend fishing opportunities for General
category permit holders through a greater portion of the subquota
periods. NMFS may waive previously scheduled RFDs under certain
circumstances, but will not modify the previously scheduled RFDs during
the fishing year in other ways (such as changing an RFD from one date
to another, or adding RFDs).
DATES: This final rule is effective on July 1, 2022, through November
30, 2022.
ADDRESSES: Copies of this final rule and supporting documents 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="8de1ecfffff4a3ffe8e9e9cde3e2ececa3eae2fb">[email protected]</span></a> or 301-427-8503.
FOR FURTHER INFORMATION CONTACT: Larry Redd, Jr., <a href="/cdn-cgi/l/email-protection#ee828f9c9c97c09c8b8a8aae80818f8fc0898198"><span class="__cf_email__" data-cfemail="adc1ccdfdfd483dfc8c9c9edc3c2cccc83cac2db">[email protected]</span></a>
or Carrie Soltanoff, <a href="/cdn-cgi/l/email-protection#94f7f5e6e6fdf1bae7fbf8e0f5fafbf2f2d4fafbf5f5baf3fbe2"><span class="__cf_email__" data-cfemail="32515340405b571c415d5e46535c5d5454725c5d53531c555d44">[email protected]</span></a>, at 301-427-8503.
SUPPLEMENTARY INFORMATION: Atlantic HMS fisheries, including BFT
fisheries, are managed under the authority of the Atlantic Tunas
Convention Act (ATCA; 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. Section 635.23 specifies the retention limit provisions for
Atlantic Tunas General category permitted vessels and HMS Charter/
Headboat permitted vessels, including regarding RFDs.
Specific information regarding RFDs, request for comments, and the
current U.S. quota and General category subquotas, was provided in the
preamble to the proposed rule (87 FR 12643, March 7, 2022) and is not
repeated here.
As described in the proposed rule, NMFS is undertaking this
rulemaking to address and avoid repetition of certain issues that
affected the General category BFT fishery in 2020 and earlier and could
recur without additional action. Those 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. Because the use of RFDs in 2021 succeeded in
extending fishing opportunities through a greater portion of the
relevant subquota periods and the fishing season overall, consistent
with management objectives for the fishery, NMFS proposed an RFD
schedule for the 2022 fishing year.
The comment period for the proposed rule closed on April 6, 2022.
NMFS received 19 written comments, including comments from commercial
and recreational fishermen, Atlantic tuna dealers, and the general
public, as well as oral comments at a public hearing held by webinar.
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 is finalizing the 2022 RFD
schedule as proposed. As described below, no changes are made from the
proposed rule. Implementing this RFD schedule, with the ability to
waive scheduled RFDs, should slow the rate of landings and 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 2022 fishing year on the
following days: All Tuesdays, Fridays, and Saturdays from July 1
through November 30, 2022. On an RFD, vessels permitted in the Atlantic
Tunas General category are prohibited from fishing for (including
catch-and-release and tag-and-release fishing), possessing, retaining,
landing, or selling BFT (Sec. 635.23(a)(2)). RFDs also apply to HMS
Charter/Headboat permitted vessels to preclude fishing commercially
under General category restrictions and retention limits on those days,
but do not preclude such vessels from recreational fishing activity
under applicable Angling category regulations and size classes, and
they may participate in including catch-and-release and tag-and-release
fishing (Sec. 635.23(c)(3)).
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). Considerations 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 only catch-and-release or tag-and-release
fishing for BFT under Sec. 635.26(a). NMFS will not modify the
previously scheduled RFDs 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.
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-2022-0025. NMFS received approximately 19
comments orally at public hearings and in writing from General category
fishermen, charter/headboat fishermen, tournament operators, and others
from the public. Commenters both supported and opposed General category
RFDs for the 2022 fishing year. Below, NMFS summarizes and responds to
all comments made specifically on the proposed rule during the comment
period.
Comment 1: Most commenters supporting RFDs noted that RFDs should
lengthen the General category season within the subquota periods and
the season overall.
Response: NMFS agrees that RFDs should lengthen the General
category season within the subquota periods and the season overall. The
primary objective of this action is to slow the harvest rate of BFT in
order to extend the period of time that the fishery remains open,
allowing fishing opportunities later in the season.
Comment 2: Some commenters supporting RFDs noted that there may be
more reliance on domestic markets this year given that global markets
and economies are still stabilizing, as well as due to the anticipated
increase in shipping costs due to fuel prices. Other commenters
expressed that RFDs were unnecessary given the impacts of COVID-19 on
the recovery of domestic and international markets.
Response: NMFS considered economic factors and past and present
[[Page 33058]]
market conditions and economies in the proposed rule. NMFS acknowledges
the unique global impacts of COVID-19 and the challenges that could be
experienced as domestic and international markets recover and given
higher fuel prices; however, NMFS observed the issues that contributed
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 and market gluts, shortening the
time it takes to fill relevant subquotas, and resulting in inseason
closures earlier than desired. In 2021, NMFS established a schedule of
RFDs from September through November. Because the use of RFDs in 2021
succeeded in extending fishing opportunities through a greater portion
of the relevant subquota periods and the fishing season overall,
consistent with management objectives for the fishery, NMFS proposed an
RFD schedule for the 2022 fishing year.
Comment 3: Some commenters expressed concern that the proposed rule
seemed to be economic in nature and would negatively impact General
category participants.
Response: As discussed in response to Comment 2, above, NMFS
considered economic factors in developing the proposed rule for this
action, but the primary purpose of the action is not solely economic in
nature. Rather, the rule is designed to lengthen the General category
season within the subquota periods and the season overall. Considering
all relevant information, NMFS concluded that RFDs should help prevent
large numbers of BFT from entering the market at the same time, which
could potentially alleviate some negative economic impacts experienced
by General category and Charter/Headboat permitted fishermen who could
not find buyers for their BFT (as did the 2021 RFD rule).
NMFS acknowledges the unique global impacts of COVID-19 and the
challenges that could be experienced due to rising fuel prices and
recovering domestic and international markets. The issues that
contributed to the need for this action were occurring for several
years, however, not only as a result of COVID-19 market effects,
although 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
and market gluts, shortening the time it takes to fill relevant
subquotas, and resulting in inseason closures earlier than desired. In
2021, NMFS established a schedule of RFDs from September through
November. Because the use of RFDs in 2021 succeeded in extending
fishing opportunities through a greater portion of the relevant
subquota periods and the fishing season overall, consistent with
management objectives for the fishery, NMFS proposed an RFD schedule
for the 2022 fishing year.
Comment 4: Some commenters opposing RFDs expressed concerns that
RFDs could result in safety-at-sea concerns and could have negative
impacts given fuel prices.
Response: 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 Sec.
635.23(a)(4).
Comment 5: 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 starting June 1, 2022,
and/or avoiding weekends. One commenter objected to the proposed RFD
schedule while also suggesting a weekly RFD schedule of Tuesday,
Friday, and Sunday. Some commenters supported the proposed schedule of
RFDs starting on July 1, 2022.
Response: NMFS' proposed schedule of RFDs was based on a review of
average daily catch rate data for recent years, a review of past years'
RFD schedules (including the 2021 RFD schedule) and how they worked to
extend the use of the General category quota, and input from General
category participants, Atlantic tuna dealers, and members of the HMS
Advisory Panel. 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). NMFS
acknowledges that Sunday (similar to Friday and Saturday) is a high
catch and landing day. However, NMFS believes that setting Sunday as an
RFD instead of Saturday would not meet the objective of this rulemaking
as it would not allow adequate time for fish products to move through
the market and would continue the increasing trend of BFT landed by
General category participants that could not be sold, as occurred from
2018 through 2020.
NMFS disagrees that RFDs should start on June 1, 2022, as catch and
landings rates are generally slow at the beginning of the June. NMFS is
setting RFDs starting on July 1, 2022, as proposed, when catch and
landing rates begin to substantially increase, resulting in General
category subquotas being met and closures of applicable General
category subquota periods. NMFS believes that this 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 the 2021 RFD schedule).
Comment 6: 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. One commenter
noted the negative impact that RFDs would have on fishing tournaments
but suggested that NMFS maintain the proposed RFD schedule, i.e.,
Tuesday, Friday, and Saturday RFDs beginning July 1, 2022, noting that
many fishing tournaments have established their dates based around the
proposed schedule. One commenter noted that RFDs did not negatively
impact their fishing tournament in 2021.
Response: NMFS acknowledges that RFDs that occur on a tournament
date may affect BFT fishing at those tournaments, since some tournament
participants are General category permit holders and are prohibited
from fishing for BFT on RFDs. However, on an RFD, General category
permit holders may still participate in non-BFT fishing during the
tournament, and may land sharks, swordfish, billfish, and/or bigeye,
albacore, yellowfin, and skipjack tunas recreationally as otherwise
allowed. Additionally, on an RFD, Charter/Headboat-permitted vessels
may participate recreationally in HMS fishing tournaments, including
for BFT,
[[Page 33059]]
under the applicable Angling category restrictions and size class
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. Given past scheduled tournaments
from July through November and the tournaments that have registered
already for this year, NMFS anticipates or has been notified of several
fishing tournaments that will likely include BFT. Should a tournament
change its dates of operation, NMFS encourages tournament operators to
contact NMFS to update the dates for which their tournament is
registered. NMFS does not plan to waive RFDs specifically and solely 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. NMFS will
closely monitor BFT landings and catch rates and, based on that
information, NMFS will consider waiving RFDs if BFT landings and
catches indicate that such action is warranted, after taking into
consideration 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 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 Sec. 635.23(a)(4).
Comment 7: NMFS received comments expressing concern that
increasing the General category retention limit from the default of one
fish to three fish to begin the June through August subquota period is
counterproductive to the goal of setting RFDs. Some commenters
requested the use of mechanisms other than RFDs to extend the fishery,
such as maintaining the default retention limit throughout the season.
One commenter suggested NMFS modify existing subquota allocations.
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 2022 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 and overall fishing effort in the
General category 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. NMFS monitors the landings closely, and, as
appropriate, NMFS then typically reduces the limit to the one-fish
default level to ensure fishing opportunities in all respective time-
period subquotas and to ensure that the available quota is not
exceeded. Any change in the retention limit considers the relevant
criteria and includes consideration of the catch rates associated with
the various authorized gear types (e.g., harpoon, rod and reel).
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). 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 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.
NMFS is not considering modifications of the General category
subquotas in this action. The proposed rule for Amendment 13 to the
2006 Consolidated HMS FMP (86 FR 27686, May 21, 2021) proposed
modifications to the BFT category quotas which were further detailed in
the Amendment 13 Final Environmental Impact Statement published on May
13, 2022 (87 FR 29310). The final rule for Amendment 13 has not been
completed, and the BFT quotas and subquotas therefore are not affected
by Amendment 13 at this time. NMFS also recently published a final rule
which would increase the U.S. baseline BFT quota to reflect a binding
2021 ICCAT binding and to adjust the subquotas accordingly.
Comment 8: NMFS received comments noting issues with dealer
practices and requesting NMFS not to use RFDs. Several individuals
noted that dealers could limit their own purchases in order to control
supply and demand related to domestic and international markets.
Response: 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-purchase (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 duration of some
subquota periods, these actions were not pre-scheduled or consistently
implemented across the fishery. Some General category and Charter/
Headboat permitted fishermen may have experienced negative impacts in
this context, and opportunities may not have been equitably distributed
among all permitted vessels. Thus, NMFS is finalizing a schedule of
RFDs for 2022.
Comment 9: NMFS received some comments noting that the BFT stock
has rebounded and is healthy, and that, therefore, this action is not
necessary. Additionally, one commenter 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 2022 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, as
intended when the time-period subquotas were adopted. 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.
[[Page 33060]]
Regarding the status of BFT, the western Atlantic BFT stock is
assessed by ICCAT, and the most recent assessment was conducted in
2021. Domestically, following the 2017 stock assessment, NMFS
determined that the overfished status for BFT is unknown and that the
stock is not subject to overfishing, and this status remains in effect.
NMFS recently published a final rule that increased the baseline U.S.
BFT quota to 1,316.14 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), as codified
at Sec. 635.27(a), consistent with Recommendation 21-07 adopted by
ICCAT at the November 2021 annual meeting. Further information on the
BFT stock assessment and stock status can be found in that final rule
and associated Environmental Assessment. This action helps manage the
BFT fisheries within that available U.S. quota and the category
subquotas as established in existing regulations.
Comment 10: NMFS received comments supporting the future use of
RFDs for the January through March subquota period noting that RFDs
would likely result in better management of the annual quota and avoid
quota exceedance during this period. One commenter expressed concerns
for setting RFDs during the January through March subquota period
noting unpredictable weather and the potential undesirable impacts of
extending the length of time to reach the subquota if the fishery
starts in mid-February. Additionally, NMFS received comments opposing
the setting of three consecutive days of RFDs or setting RFDs for the
December subquota period.
Response: Although NMFS requested comment on the potential setting
of RFDs for the January through March subquota period, NMFS is not
setting RFDs for the January through March 2023 subquota period through
this action because BFT landings and catch rates do not indicate RFDs
are warranted at this time. NMFS will continue to monitor landings
during this subquota period and consider the input received during the
public comment period for this action to determine whether RFDs are
necessary for the January through March subquota period. If NMFS
believes RFDs are necessary for the January through March subquota
period, NMFS will publish a proposed schedule of RFDs in a future
rulemaking.
Comment 11: One commenter requested that NMFS establish RFDs for
fishermen fishing in the Gulf of Mexico noting that the Gulf of Mexico
is a spawning area for BFT.
Response: NMFS disagrees that RFDs should be established
specifically for the Gulf of Mexico. Under the current regulations,
commercial fishermen, including all General category permit holders and
Charter/Headboat permitted vessels that fish commercially for BFT, may
not target BFT at any time in the Gulf of Mexico, a rule that was
established recognizing that the Gulf of Mexico is recognized as the
primary spawning grounds for bluefin tuna. HMS Charter/Headboat permit
holders fishing recreationally may retain one ``trophy'' BFT (>73'')
per vessel per year from the Gulf of Mexico, if it is caught
incidentally while fishing for other species, provided the limited
``trophy'' category subquota in the Gulf of Mexico is available at the
time of harvest and the season has not closed. RFDs do not apply to
recreational catch because RFDs only apply to General category permit
holders and Charter/Headboat permitted vessels that fish commercially
for BFT.
Comment 9: NMFS received a comment expressing concern that RFDs
would not reduce the amount of fishing gear in the ocean.
Response: Addressing discarded gear is outside of the scope of this
action.
Classification
NMFS is issuing this rule pursuant to 305(d) of the Magnuson-
Stevens Act. 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 law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
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 FRFA 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
2022 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 the 2021 RFD schedule).
Section 604(a)(2) of the RFA requires a summary of significant
issues raised by the public in response to the IRFA, a summary of the
agency's assessment of such issues, and a statement of any changes made
as a result of the comments. As described above, during the public
comment period, NMFS received comments both in support of and opposed
to establishing RFDs for 2022. No comments specifically referenced the
IRFA, although some comments raised a variety of economic concerns
including whether RFDs would affect the market (see comments 2, 3, 5,
and 8), whether RFDs would affect some parts of the fishery more than
others (see comment 9), and whether RFDs would negatively affect
tournaments (see comment 6). NMFS' responses to those comments are
summarized above. After careful consideration of all the comments
received, no changes were made to the proposed rule.
Section 604(a)(3) of the RFA requires the response of the agency to
any comments filed by the Chief Counsel for Advocacy of the Small
Business Administration (SBA) in response to the proposed rule, and a
detailed statement of any change made to the proposed rule in the final
rule as a result of the SBA 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
descriptions of, and where feasible, 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. 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.
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. NMFS considers all HMS permit
holders, both commercial and for-hire, to be small entities because
[[Page 33061]]
they had average annual receipts of less than their respective sector's
standard of $11 million and $8 million. The 2020 total ex-vessel annual
revenue for the BFT fishery was $8.4 million. Since a small business is
defined as having annual receipts not in excess of $11.0 million, each
individual BFT permit holder would fall within the small entity
definition. The numbers of relevant annual Atlantic Tunas or Atlantic
HMS permits as of October 2021 are as follows: 2,730 General category
permit holders and 4,055 HMS Charter/Headboat permit holders, of which
1,793 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 2022 as an effort control for the General
category.
Section 604(a)(6) of the RFA, requires agencies to describe the
steps the agency has taken to minimize the significant economic impact
on small entities consistent with the stated objectives of applicable
statutes, including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in the final rule and why
each one of the other significant alternatives to the rule considered
by the agency which affect the impact on small entities was rejected.
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 set a schedule of RFDs for the General category in 2022. Under
the regulations, when a General category subquota period 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 subquota period. According to communications with
dealers and fishermen, several of the high-volume 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 period
in order to extend the available quota until later in the subquota
period 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 period was closed, because these actions were not pre-
scheduled or consistently implemented across the fishery, there were
negative impacts experienced by some General category and Charter/
Headboat permitted fishermen, who could not find buyers for their BFT.
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. In 2021, NMFS set pre-scheduled RFDs for the
General category fishery on certain days (Tuesdays, Fridays, and
Saturdays) from September through November to increase the likelihood
of pacing General category landings to extend fishing opportunities
through a greater portion of the subquota periods. 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 from 2017 through
2021. The number and weight of unsold BFT increased from 2018 through
2020, with a peak of unsold BFT in 2020 (161 BFT and 28.8 mt) which
NMFS presumes is in part due to the pandemic, and substantially
decreased in 2021 (from 161 to 14 BFT and 28.8 mt to 2.5 mt). NMFS
believes this substantial decrease is in part due to the use of RFDs in
2021.
Table 1--Number (Count) and Weight (mt) of BFT Landed but Unsold by
General Category Participants by Year
[2017-2021]
------------------------------------------------------------------------
Year Count Weight (mt)
------------------------------------------------------------------------
2017................................ 0 0
2018................................ 8 1.4
2019................................ 11 2.2
2020................................ 161 28.8
2021................................ 14 2.5
-----------------------------------
Total........................... 194 34.9
------------------------------------------------------------------------
Table 2 shows the average ex-vessel price per pound of BFT during
each General category subquota time period from 2017 through 2021. Ex-
vessel price per pound was lower for the June through August period,
with an average (2017 through 2021) of $6.29, and increased into fall
period, with an average of $6.98 for the October through November
period). In 2021, the average price per pound was higher for all time
periods compared to the average price per pound during the time periods
in 2020. In most time periods, the 2021 average price per pound was
also higher than the 2019 average price per pound. NMFS believes that
this increase in average price was in part due to the use of RFDs in
2021.
[[Page 33062]]
Table 2--Average Ex-Vessel Price per Pound ($) of BFT by General Category Subquota Time Period
[2017-2021]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subquota time period
-----------------------------------------------------------------------------------------
Year January through June through October through
March August September November December
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017.......................................................... $7.30 $6.73 $7.08 $7.58 $9.83
2018.......................................................... 7.49 6.92 6.56 7.58 9.56
2019.......................................................... 6.07 5.61 6.36 5.53 12.25
2020.......................................................... 6.14 4.92 5.22 5.63 5.76
2021.......................................................... 6.26 6.96 6.17 7.40 8.55
-----------------------------------------------------------------------------------------
2017-2021 average......................................... 6.52 6.29 6.26 6.98 8.80
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3 shows the number of open days during each General category
subquota time period from 2017 through 2021. On an annual basis, the
average number of General category open days tends to be higher earlier
in the fishing year (i.e., 64 days for the January through March period
and 79 days for the June through August period) and decreases as the
season progresses into the late fall and winter seasons (i.e., 21 days
for September period, 21 days for October through November period, and
20 days for the December period). In 2021, the total number of open
days was higher compared to the total number of days in 2019. NMFS set
RFDs for the September and October through November subquota periods in
2021. Although the number of open days for the September 2021 subquota
period was the lowest except for 2019, the October through November
2021 subquota period remained open for more days compared to the
previous four years. NMFS believes that the increase in fishing days
was in part due to RFDs.
Table 3--General Category Number of Open Days by Subquota Time Period
[2017-2021]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subquota time period
-----------------------------------------------------------------------------------------------------------
Year January through June through October through
March August September November December Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017........................................ 88 77 17 5 6 193
2018........................................ 61 92 23 15 31 222
2019........................................ 59 69 13 13 31 185
2020........................................ 55 91 27 11 14 200
2021........................................ 58 65 14 34 18 189
-----------------------------------------------------------------------------------------------------------
2017-2021 average....................... 64 79 19 16 20 198
--------------------------------------------------------------------------------------------------------------------------------------------------------
NMFS is setting a schedule of RFDs for the 2022 fishing year that
would specify days on which General category quota fishing and sales
will not occur. Specifically, the schedule allows for two-consecutive-
day periods twice each week for BFT product to move through the market
while also allowing some commercial fishing activity to occur each
weekend (i.e., Sundays). Because this schedule of RFDs would apply to
all participants equally, NMFS anticipates that this schedule would
extend fishing opportunities through a greater proportion of the
subquota periods in which they apply by spreading fishing effort out
over time, similar to the 2021 fishing season. Further, to the extent
that the ex-vessel revenue of 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
value of the General category subquotas could increase, similar to that
of 2021. Thus, although NMFS anticipates that the same overall amount
of the General category quota would be landed as well as the same
amount of BFT landed per vessel, there may be positive impacts to the
General category and Charter/Headboat (commercial) BFT fishery because
using RFDs may more equitably distribute opportunities across all
permitted vessels for longer durations within the subquota periods.
If NMFS does not implement a schedule of RFDs, as in this final
rule, without any other changes, it is possible that the trends of
increasing numbers of unsold BFT (Table 1) and decreasing ex-vessel
prices (Table 2) from 2017 through 2020 could continue. Additionally,
without RFDs in 2022, the General category could have fewer open days
later in the fishing season when ex-vessel prices tend to be higher
(Table 3) as observed from 2017 through 2020. If those trends were to
continue, most active General category permit holders could experience
negative economic impacts similar to those in 2019 and 2020 when
dealers were limiting their purchases of BFT and buying no or very few
BFT on certain days in order to extend the available quota.
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
[[Page 33063]]
information and regulations for Atlantic BFT General category RFDs for
the 2022 fishing year. That booklet notice serves as the small entity
compliance guide. Copies of the compliance guide are available from
NMFS (see ADDRESSES).
Dated: May 24, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2022-11730 Filed 5-31-22; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.