Rule2023-11079
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
May 25, 2023
Effective
July 1, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This temporary rule sets Atlantic bluefin tuna (BFT) General category restricted-fishing days (RFDs) for all Tuesdays, Fridays, and Saturdays from July 1 through November 30, 2023. 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 an RFD, HMS Charter/Headboat permitted vessels with a commercial sale endorsement also are subject to these restrictions and may not fish 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. 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 88 Issue 101 (Thursday, May 25, 2023)</title>
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[Federal Register Volume 88, Number 101 (Thursday, May 25, 2023)]
[Rules and Regulations]
[Pages 33839-33845]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11079]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 230518-0134]
RIN 0648-BL94
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: Temporary rule.
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SUMMARY: This temporary rule sets Atlantic bluefin tuna (BFT) General
category restricted-fishing days (RFDs) for all Tuesdays, Fridays, and
Saturdays from July 1 through November 30, 2023. 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 an RFD, HMS Charter/Headboat permitted vessels with a
commercial sale endorsement also are subject to these restrictions and
may not fish 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. 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: Effective July 1, 2023, through November 30, 2023.
ADDRESSES: Copies of this temporary 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 Erianna Hammond at <a href="/cdn-cgi/l/email-protection#dfbaadb6beb1b1bef1b7beb2b2b0b1bb9fb1b0bebef1b8b0a9"><span class="__cf_email__" data-cfemail="6b0e19020a05050a45030a060604050f2b05040a0a450c041d">[email protected]</span></a> or 301-427-8503.
FOR FURTHER INFORMATION CONTACT: Erianna Hammond,
<a href="/cdn-cgi/l/email-protection#d2b7a0bbb3bcbcb3fcbab3bfbfbdbcb692bcbdb3b3fcb5bda4"><span class="__cf_email__" data-cfemail="1f7a6d767e71717e31777e727270717b5f71707e7e31787069">[email protected]</span></a>, or Larry Redd, Jr., <a href="/cdn-cgi/l/email-protection#a5c9c4d7d7dc8bd7c0c1c1e5cbcac4c48bc2cad3"><span class="__cf_email__" data-cfemail="d8b4b9aaaaa1f6aabdbcbc98b6b7b9b9f6bfb7ae">[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 (88 FR 13771, March 6, 2023) 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 previous years 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, and the increased numbers of BFT that are
landed but not sold to dealers because of market gluts. Because the use
of RFDs in 2022 succeeded in extending fishing opportunities through a
greater portion of the relevant General Category time periods and the
fishing season overall, consistent with management objectives for the
fishery, NMFS proposed an RFD schedule for parts of the 2023 and 2024
fishing years.
The comment period for the proposed rule closed on April 5, 2023.
NMFS received 43 written comments, including comments from commercial
and recreational fishermen, Atlantic tunas 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 an RFD schedule
for the June through August, September, and October through November
2023 time periods and is not finalizing an RFD schedule for the
December 2023 or January through March 2024 time periods. Setting an
RFD schedule for
[[Page 33840]]
July through November, with the ability to waive scheduled RFDs, should
slow the rate of landings and provide available quota throughout a
greater portion of the General category time periods while providing
reasonable fishing opportunities, including some fishing tournament
opportunities, for all General category participants.
Specifically, NMFS sets RFDs on the following days: all Tuesdays,
Fridays, and Saturdays from July 1 through November 30, 2023. 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 catch-and-release and tag-and-release fishing (Sec. 635.23(c)(2)).
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)(7). 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. 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-2023-0016. NMFS received 43 written comments
from General category fishermen, Charter/Headboat fishermen, tournament
operators, Atlantic tunas dealers, and others from the general public,
as well as oral comments at a public hearing. 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.
Response: NMFS agrees that RFDs should lengthen the General
category season within the General category time periods and the season
overall. The primary objective of this action is to slow the harvest
rate of BFT in order to extend General category fishing opportunities
through a greater portion of the General category time periods.
Comment 2: Some commenters opposed to RFDs expressed concern that
the proposed rule seemed to be economic in nature and would negatively
impact General category participants. These commenters suggested that
NMFS no longer use RFDs as a management tool to manage the BFT
fisheries.
Response: While NMFS considered economic factors in developing the
proposed rule for this action, the primary purpose of the action is not
economic in nature. Rather, the rule is designed to extend General
category fishing opportunities through a greater portion of the General
category time periods. RFDs provide a pre-scheduled, consistent
approach to slow landings across the fishery. After considering all
relevant information, NMFS concluded that the use of RFDs is likely to
extend the period of time that the fishery remains open resulting in
more fishing opportunities later into General category time periods.
Comment 3: NMFS received comments noting that the BFT stock is
healthy and therefore, this action is unwarranted. Additionally,
commenters suggested that NMFS negotiate for more BFT quota at ICCAT.
Some commenters suggested that NMFS modify existing subquota
allocations. NMFS also received some comments supporting the proposed
rule noting this action would assist with the conservation and
protection of bluefin tuna. One commenter noted that BFT are an
endangered species and protection of the species should be a priority
of the Agency.
Response: NMFS disagrees that this action is ``unwarranted'' and
further notes that BFT are not an endangered species. The purpose of
this action, consistent with the objectives of the 2006 Consolidated
HMS FMP and its amendments and other applicable laws, is to extend, to
the extent practicable, General category fishing opportunities
throughout the General category time periods, as was intended when the
time period subquotas were adopted. RFDs are an effective effort
control that can assist with that purpose.
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. This stock status remains in
effect. NMFS published a temporary rule in 2022 (87 FR 33049, June 1,
2022), 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. ICCAT Recommendation 22-10 maintained the U.S. BFT quota as
specified above. Further information on the BFT stock assessment and
stock status can be found in that temporary rule and associated
Environmental Assessment. This action helps manage the BFT fisheries
within that available U.S. quota and category subquotas as established
in existing regulations.
NMFS is not considering modifications of the General category time
period subquotas in this action. 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).
As discussed in the final rule for Amendment 13 (87 FR 59966; October
3, 2022), NMFS determined that the current structure of the fishery
provides equitable fishing opportunities and decided against modifying
the General category subquota percentages. NMFS notes, that Amendment
13, among other things, eliminated the Purse Seine category and
proportionally reallocated Purse Seine category quota to all of the
other bluefin quota categories, including the General and Angling
categories, resulting in an increase to the General category and
Angling category quota and subquotas. For more information on the
Amendment 13 quota allocations, please check the Amendment 13
compliance guide found on the NOAA Fisheries website.
Comment 4: NMFS received comments supporting the proposed July
through November Tuesday, Friday, and Saturday schedule of RFDs as well
as comments suggesting alternative days.
[[Page 33841]]
Some of the commenters supporting the proposed scheduled specifically
noted that they are in support of not adding Sunday as an RFD because
adding Sunday would have negative impacts on those fishermen that work
other jobs full-time during the week and supplement their income with
weekend fishing trips. Other commenters suggested a weekly schedule of
consecutive RFDs on Friday, Saturday, and Sunday noting that effort and
landings rates traditionally are higher on the weekend. One commenter
suggested a weekly schedule of Thursday, Friday, and Saturday.
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 and 2022 RFD schedules) and how they
worked to extend the use of the General category quota, and input from
members of the HMS Advisory Panel, General category participants, and
Atlantic tunas dealers. The Tuesday, Friday, and Saturday RFD schedule
allows for two-consecutive-day periods twice each week (Sunday-Monday;
Wednesday-Thursday) for General category permitted vessels, 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 allows for some commercial fishing activity to
occur each weekend (i.e., Sundays) while also providing opportunity
throughout the week to move BFT products through the market. NMFS
acknowledges that Sunday is a high catch and landing day. As some
commenters noted, fully restricting the weekend by adding an RFD on
Sunday could have negative unintended impacts for those who could only
commercially fish on the weekends. Furthermore, further restricting the
weekend by adding Sunday may push those high catch rates to another
open day. Additionally, if NMFS set RFDs for the entire weekend, as
suggested by some commenters, or for three consecutive days, as
suggested by other commenters, NMFS is concerned the schedule would not
allow adequate time for fish products to move through the market and
could continue the recent trend of BFT being landed by General category
participants but not sold. Based on input received during the public
comment period for this action and an analysis of daily landings rates,
NMFS is setting the RFD schedule to be every Tuesday, Friday, and
Saturday from July 1 through November 30, 2023.
Comment 5: Some commenters suggested starting RFDs on June 1
instead of July 1.
Response: NMFS disagrees that RFDs should start on June 1 because
catch and landings rates are generally slow at the beginning of June,
and there is no need to further reduce catch and landings rates at that
time. Catch and landing rates usually begin to substantially increase
around July 1. 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 time periods.
Comment 6: NMFS received comments both supporting and opposing 4
RFDs per week. Some of those in support noted that adding an additional
RFD could better assist with slowing the catch, keeping the fishery
open, and market gluts and some specifically noted that 3 RFDs per week
have not been effective at extending the General category time periods.
Others in support suggested that NMFS set RFDs on Tuesday, Friday,
Saturday, and Sunday noting that weekends are high effort days. One
commenter suggested a schedule of Wednesday, Friday, Saturday, and
Sunday and another suggested Friday, Saturday, Sunday, and Monday.
Commenters opposed to 4 RFDs per week noted that having only 3 open
days per week would be too much of an economic burden for commercial
fishermen. Another expressed concerns that an additional RFD would
create safety-at-sea conflicts due to more effort on open days to
harvest the General category quota and subquotas. Some suggested
setting 4 RFDs per week for June through November, while another
suggested 4 RFDs per week specifically for September through November.
NMFS also received comments suggesting NMFS set 5 RFDs per week.
Response: Although NMFS requested comment on the potential setting
of 4 RFDs per week from July through November, NMFS is not setting 4
RFDs or 5 RFDs per week during these time periods through this action.
NMFS acknowledges that although 4 RFDs per week from July through
November might lengthen the General category season within the time
periods, it would also limit commercial fishing participants to 3 or
fewer fishable days per week depending on the weather, thus decreasing
fishing opportunities, which would conflict directly with the objective
of this rulemaking. Similarly, potentially decreasing fishing
opportunities via a schedule of 5 RFDs per week would be contrary to
the objective of this rulemaking. NMFS may consider 4 RFDs per week in
the future, if appropriate.
Comment 7: Most commenters did not support implementing RFDs for
the December 2023 and January through March 2024 time periods, noting
that the unpredictable weather during those periods in combination with
RFDs could result in safety-at-sea issues and potentially limit
commercial fishermen from landing the relevant subquotas. One commenter
suggested that NMFS implement RFDs year-round.
Response: Based on the public comments received, NMFS is not
finalizing longer RFDs for the December 2023 and January through March
2024 time periods. NMFS recognizes that the weather during those
periods is unpredictable and may limit participation such that setting
RFDs in those periods may not be necessary. For the same reasons, NMFS
does not support the use of year-round RFDs at this time. NMFS may
consider RFDs for the December and January through March time periods
in the future, if appropriate.
Comment 8: One commenter noted that RFDs would have a negative
impact on fishing tournaments and suggested that NMFS maintain the
proposed RFD schedule, i.e., Tuesday, Friday, and Saturday RFDs
beginning July 1, 2023. The commenter noted that many fishing
tournaments have established their dates based around the proposed
schedule and that any modifications to the RFD schedule could have
additional negative economic impacts on BFT tournament operations and
local communities.
Response: NMFS acknowledges that RFDs that occur on a tournament
date may negatively 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 (if they also hold a shark
endorsement), 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, 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,
[[Page 33842]]
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)(7). 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 by filing such an
adjustment in the Federal Register, under Sec. 635.23(a)(4).
Comment 9: NMFS received some comments expressing concern that
increasing the General category retention limit from the default of 1
fish to 3 fish to begin the June through August time period is
unwarranted. Some commenters suggested that NMFS increase the retention
limit to 3 fish to begin the June through August time period and
subsequently decrease the retention limit from 3 fish to 1 fish when
landings rates begin to increase. One commenter requested that NMFS
maintain the default of 1 fish during the summer and increase the
retention limit to 2 or 3 fish during the fall to correspond with RFDs.
One commenter suggested that NMFS increase the retention limit to 2
fish instead of 3 fish to begin the June the August time period.
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 2023 General category time periods.
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
3 fish, following consideration of the relevant criteria provided under
Sec. 635.27(a)(7), including supporting scientific data collection.
NMFS monitors the landings closely, and, as appropriate, NMFS then
typically reduces the limit to the 1-fish default level to ensure
fishing opportunities in all respective time-periods 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). 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.
Comment 10: NMFS received comments suggesting mandatory fish
handling guidelines (e.g., ice requirement) and better enforcement of
safety gear requirements for commercial fishing vessels noting that a
number of vessels do not have the correct safety gear and do not
properly handle BFT for sale.
Response: This comment is outside of the scope of this action. NMFS
notes that guidance for the commercial fishing industry regarding
seafood handling can be found under the Seafood Hazard Analysis and
Critical Control Point (HACCP) and the Food and Drug Administration
(FDA) Food Safety Modernization Act. Additionally, provisions regarding
commercial fishing vessel safety can be found under the Coast Guard
regulations in 46 CFR part 28.
Comment 11: One commenter suggested going to a tag system to
address safety gear concerns.
Response: It is unclear if the commenter is talking about a landing
tag system or the tag-and-release program. However, this comment is
outside of the scope of this action. NMFS notes that interested vessel
operators can participate in a tag-and-release program where NMFS-
issued conventional tags, reporting cards, and detailed instructions
for their use may be obtained from the NMFS Cooperative Tagging Center
((800) 437-3936 or <a href="https://www.fisheries.noaa.gov/southeast/atlantic-highly-migratory-species/cooperative-tagging-program">https://www.fisheries.noaa.gov/southeast/atlantic-highly-migratory-species/cooperative-tagging-program</a>). Additionally,
NMFS requires dealers to affix a dealer tag to all BFT purchased or
received from a U.S. vessel immediately upon offloading the BFT.
Classification
NMFS is issuing this rule pursuant to 304(c) of the Magnuson-
Stevens Act. The NMFS Assistant Administrator has determined that this
temporary 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 temporary rule has been determined to be not significant for
purposes of Executive Order 12866.
This temporary 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 temporary rulemaking is to set a schedule of RFDs for
the 2023 fishing year that should slow the rate of General category
landings to extend fishing opportunities through a greater portion of
the General category time periods (similar to the 2022 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 2023 and part of 2024 year. 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, 6, 8), whether RFDs would affect some parts of
the fishery more than others (see comment 6), and whether RFDs would
negatively affect tournaments (see comment 8). NMFS' responses to those
comments are summarized above. After careful consideration of all the
comments received, NMFS is not finalizing an RFD schedule for the
December 2023 or January through March 2024 time periods.
Section 604(a)(3) of the RFA requires the response of the agency to
any
[[Page 33843]]
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 temporary 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 (North American
Industrial Classification System (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 $14.0 million. 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 $14 million. The 2021
total ex-vessel annual revenue for the BFT fishery was $11.8 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 2022 are as
follows: 2,630 General category permit holders and 4,175 HMS Charter/
Headboat permit holders, of which 1,873 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
temporary rule does not contain any new collection of information,
reporting, or record-keeping requirements. This temporary rule would
set a schedule of RFDs for July 1 through November 30, 2023 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 temporary 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 temporary 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 temporary rule
will instead set a schedule of RFDs for the General category for 2023.
Under the regulations, when a General category subquota is reached or
projected to be reached during a General category time period, 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 time period or
until such date as specified. In recent years, these closures, if
needed, have generally occurred toward the end of a time period.
According to communications with dealers and fishermen, several of the
high-volume Atlantic tunas dealers in 2019, 2020, and 2022 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 time period in order to extend the available
quota until later in the time 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 time 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 time periods. In
2022, NMFS again set RFDs for the General category fishery on every
Tuesday, Friday, and Saturday from July 1 through November 30.
Table 1 shows the General category closure dates by time period for
2018 through 2022. The General category remained open for the entire
duration of the June through August time period in 2018 and 2020, and
of the December time period in 2018 and 2019. The October through
November time period tends to close the earliest of any time period,
and NMFS often receives requests to reopen that time period. Following
the consideration of numerous factors (i.e., daily landings rates,
weather conditions, available quota, etc.), NMFS reopened the October
through November time period in 2018 and 2020. In 2021, NMFS set RFDs
for the September through November time periods, resulting in the
General category fishing extending late into September and through the
end of October through November time period. In 2022, NMFS set RFDs for
the June through November time periods, with the first RFD established
on July 1. Closure dates for 2022 were February 11, August 10,
September 19, October 24, and December 10, respectively, for each time
period. NMFS believes that the relatively early closure dates in 2022
were due in part to high daily landings rates when the time periods
were open in the summer and fall. Based on a review of average daily
landings rates, without the use of RFDs, NMFS likely would have needed
to close the June through November time periods much earlier if the
RFDs were not in place. These high landings rates continued into
December 2022, resulting in that time period closing after 10 days,
much earlier than in 2018 through 2021. The use of RFDs in 2022 from
June through November paced the landings as much as possible and
extended the fishing opportunities for the June through November time
periods.
[[Page 33844]]
Table 1--General Category Closure Dates by Time Period (2018-2022)
----------------------------------------------------------------------------------------------------------------
Time period
-----------------------------------------------------------------------------------------------------
Year October through
January through March June through August September November December
----------------------------------------------------------------------------------------------------------------
2018...... Mar 2................ Aug 31............... Sept 23............. Closed Oct 5; Dec 31.
Reopened Oct
31 through Nov
2; Reopened
Nov 12 through
Nov 26.
2019...... Feb 28............... Aug 8................ Sept 13............. Oct 13......... Dec 31.
2020...... Feb 24............... Aug 31............... Sept 27............. Closed Oct 9; Dec 14.
Reopened Oct
28-29;
Reopened Nov 7-
8.
2021...... Feb 27............... Aug 4................ Sept 23............. Nov 30......... Closed Dec 14;
Reopened Dec
20-23.
2022...... Feb 11............... Aug 10............... Sept 19............. Oct 24......... Dec 10.
----------------------------------------------------------------------------------------------------------------
Table 2 shows the average ex-vessel price per pound of BFT during
each General category time period for 2018 through 2022 adjusted to
real 2022 dollars using the Gross Domestic Product (GDP) deflator. Ex-
vessel price per pound was lower for the September time period, with an
average (2018 through 2022) of $6.71, and varied over the summer and
fall period, with averages of $7.04 for the June through August time
period and $7.09 for the October through November time period. In 2022,
the average price per pound was higher for the January through March
time period compared to the average price per pound during that time
period in 2021. In most time periods, the 2022 average price per pound
was also higher than the 2020 average price per pound. NMFS believes
that this increase in average price was in part due to the use of RFDs
in 2022.
Table 2--Average Ex-Vessel Price per Pound ($) of BFT by General Category Time Period (2018-2022) Adjusted to
Real 2022 Dollars *
----------------------------------------------------------------------------------------------------------------
Time period
------------------------------------------------------------
Year January June October
through through September through December
March August November
----------------------------------------------------------------------------------------------------------------
2018............................................... $8.80 $8.13 $7.67 $8.83 $11.14
2019............................................... 7.03 6.48 7.32 6.34 14.04
2020............................................... 7.00 5.62 5.92 6.33 6.50
2021............................................... 6.94 7.60 6.59 7.85 9.06
2022............................................... 8.84 7.37 6.08 6.09 7.19
2018 through 2022 average.......................... 7.72 7.04 6.71 7.09 9.59
----------------------------------------------------------------------------------------------------------------
* Adjusted using the Gross Domestic Product (GDP) Deflator.
Table 3 shows the number and total weight of BFT that were landed
but not sold by fishermen fishing under the General category quota for
2018 through 2022. The number and weight of unsold BFT increased from
2018 through 2022 with a peak in 2020 (143 BFT and 25.8 mt) in part due
to the COVID-19 pandemic, and substantial decrease in 2021 (from 143 to
12 BFT and 25.8 mt to 2.0 mt), followed by an increase in 2022 (48 BFT
and 9.1 mt). NMFS believes this increase is in part due to an influx of
domestically caught BFT entering the market at one time resulting in
dealers limiting their purchases of BFT leading to General category
participants. This situation resulted in unprecedented high landings
days in several time periods and BFT fishermen having a difficult time
finding buyers for landed BFT.
Table 3--Number (Count) and Weight (mt) of BFT Landed but Unsold by
General Category Participants by Year (2018-2022)
------------------------------------------------------------------------
Year Count Weight (mt)
------------------------------------------------------------------------
2018.................................... 14 2.6
2019.................................... 20 3.8
2020.................................... 143 25.8
2021.................................... 12 2.0
2022.................................... 48 9.1
-------------------------------
Total............................... 237 43.3
------------------------------------------------------------------------
After considering public comment, NMFS is setting a schedule of
RFDs for the 2023 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 applies to all
[[Page 33845]]
participants equally, NMFS anticipates that this schedule would extend
fishing opportunities through a greater proportion of the time periods
in which they apply by spreading fishing effort out over time, similar
to the 2022 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 2022.
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 time periods.
If NMFS does not implement a schedule, without any other changes,
it is possible that the General category could have fewer open days
later in the fishing season when ex-vessel prices tend to be higher
(Table 1) as observed in 2018 through 2022. Additionally, without RFDs
the trends of increasing numbers of unsold BFT (Table 3) and decreasing
ex-vessel prices (Table 2) from 2018 through 2020 could continue. If
those trends were to continue, all active General category permit
holders could experience negative economic impacts similar to 2019,
2020, and 2022 where 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 information and regulations for Atlantic BFT General category
RFDs for the 2023 fishing year. That booklet notice serves as the small
entity compliance guide. Copies of the compliance guide are available
from NMFS (see ADDRESSES).
Authority: 16 U.S.C. 971 et seq. and 1801 et seq.
Dated: May 19, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-11079 Filed 5-24-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on May 25, 2023.
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.