Proposed Rule2024-03594
Atlantic Highly Migratory Species; Bluefin Tuna General Category Effort Controls and Related Regulations
Primary source
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Published
February 23, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is proposing to codify a schedule of restricted-fishing days (RFDs) for the 2024 fishing year and subsequent fishing years; reestablish a General category default retention limit for large medium or giant bluefin tuna (BFT) on open days; and make clarifications to the BFT dealer regulations and the definition of a bluefin statistical document (BSD) tag. This proposed action is necessary to increase the likelihood of pacing General category landings to extend fishing opportunities through a greater portion of the General category time period subquotas. Lastly, this proposed action would clarify existing regulations to ensure better understanding and compliance by General category quota participants.
Full Text
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<title>Federal Register, Volume 89 Issue 37 (Friday, February 23, 2024)</title>
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[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Proposed Rules]
[Pages 13667-13674]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-03594]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 240213-0046]
RIN 0648-BM66
Atlantic Highly Migratory Species; Bluefin Tuna General Category
Effort Controls and Related Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS is proposing to codify a schedule of restricted-fishing
days (RFDs) for the 2024 fishing year and subsequent fishing years;
reestablish a General category default retention limit for large medium
or giant bluefin tuna (BFT) on open days; and make clarifications to
the BFT dealer regulations and the definition of a bluefin statistical
document (BSD) tag. This proposed action is necessary to increase the
likelihood of pacing General category landings to extend fishing
opportunities through a greater portion of the General category time
period subquotas. Lastly, this proposed action would clarify existing
regulations to ensure better understanding and compliance by General
category quota participants.
DATES: Written comments may be submitted via <a href="https://www.regulations.gov">https://www.regulations.gov</a> and must be received by March 25, 2024. Comments
may also be submitted at a public hearing or webinar. NMFS will hold a
public hearing via conference call and webinar for this proposed rule
on March 19, 2024, from 2 p.m. to 4 p.m., Eastern Time. Information for
registering and accessing the webinar can be found at <a href="https://www.fisheries.noaa.gov/action/proposed-rule-set-general-category-effort-controls-and-clarify-related-atlantic-bluefin-tuna">https://www.fisheries.noaa.gov/action/proposed-rule-set-general-category-effort-controls-and-clarify-related-atlantic-bluefin-tuna</a>. Requests for
sign language interpretation or other auxiliary aids should be directed
to Larry Redd, Jr., (see FOR FURTHER INFORMATION CONTACT section) at
least 7 days prior to the meeting. The public is reminded that NMFS
expects participants at conference calls and webinars to conduct
themselves appropriately. At the beginning of each conference call and
webinar, the moderator will explain how the conference call and webinar
will be conducted and how and when participants can provide comments.
NMFS will structure the conference call and webinar so that all members
of the public will be able to comment. Participants are expected to
respect the ground rules, and those that do not may be asked to leave
the conference calls and webinars.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2024-0021, by electronic submission. Submit all electronic
public comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and type ``NOAA-NMFS-2024-0021'' in the Search box
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results). Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments.
Written comments sent by any other method, to any other address or
individual, or received after the close of the comment period, may not
be considered by NMFS. All comments received are a part of the public
record and will generally be posted for public viewing on <a href="https://www.regulations.gov">https://www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Copies of this proposed 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, Jr., or Erianna Hammond (see FOR FURTHER
INFORMATION CONTACT section).
FOR FURTHER INFORMATION CONTACT: Larry Redd, Jr., <a href="/cdn-cgi/l/email-protection#90fcf1e2e2e9bee2f5f4f4d0fefff1f1bef7ffe6"><span class="__cf_email__" data-cfemail="2d414c5f5f54035f4849496d43424c4c034a425b">[email protected]</span></a>,
or Erianna Hammond, <a href="/cdn-cgi/l/email-protection#a1c4d3c8c0cfcfc08fc9c0cccccecfc5e1cfcec0c08fc6ced7"><span class="__cf_email__" data-cfemail="b1d4c3d8d0dfdfd09fd9d0dcdcdedfd5f1dfded0d09fd6dec7">[email protected]</span></a>, at 301-427-8503.
SUPPLEMENTARY INFORMATION:
Background
BFT fisheries are managed under the 2006 Consolidated HMS Fishery
Management Plan (FMP) and its amendments pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act;
16 U.S.C. 1801 et seq.) and consistent with the Atlantic Tunas
Convention Act (ATCA; 16 U.S.C. 971 et seq.). HMS implementing
regulations are at 50 CFR part 635. Section 635.23 describes the daily
retention limits for BFT including retention limits on RFDs. Section
635.27 divides the U.S. BFT quota, established by the United States and
other members of the International Commission for the Conservation of
Atlantic Tunas (ICCAT), among the various domestic fishing categories
per the allocations established in the FMP and its amendments. NMFS is
required under the Magnuson-Stevens Act at 16 U.S.C. 1854(g)(1)(D) to
provide U.S. fishing vessels with a reasonable opportunity to harvest
quotas under relevant international fishery agreements such as the
ICCAT Convention, which is implemented domestically pursuant to ATCA.
The BFT fishery is a quota-managed fishery, and the annual U.S. BFT
quota is established by binding recommendations of ICCAT. The U.S. BFT
quota established through that process is implemented domestically
through rulemaking and allocated among six quota categories (General,
Angling, Harpoon, Longline, Trap, and Reserve). This proposed rule
considers actions specific to the General category
[[Page 13668]]
quota and General category quota participants, which include Atlantic
Tunas General category permitted vessels and HMS Charter/Headboat
permitted vessels when fishing commercially. As described in Sec.
635.27(a), the overall baseline U.S. annual quota is 1,316.14 metric
tons (mt). The General category baseline quota is 710.7 mt which is
suballocated into time period subquotas as follows: January through
March, 5.3 percent (37.7 mt); June through August, 50 percent (355.4
mt); September, 26.5 percent (188.3 mt); October through November, 13
percent (92.4 mt); and December, 5.2 percent (37 mt) (Sec. 635.
27(a)(1)(i)(A) through (E)).
BFT General Category RFDs
NMFS originally established regulatory authority to set so-called
``no-fishing'' days for BFT in the General category fishery in 1995 (60
FR 38505, July 27, 1995). In that final rule, NMFS described no-fishing
days as an effort control that could be used to extend the General
category fishing season, prevent overharvest of quota in any period,
and improve distribution of fishing opportunities without increasing
BFT mortality. The regulation provided that scheduled no-fishing days
would be published in the Federal Register for a comment period of 30
days, and waiver of such days would be filed with the Federal Register
a minimum of 5 days in advance of the scheduled no-fishing days if NMFS
determined that the effort control would impede landing of the monthly
quotas. Id. at 38506. In 1996, NMFS began using the term ``RFD'' rather
than ``no-fishing days'' (61 FR 30183, June 14, 1996). From 1995
through 2007, NMFS set RFDs on annual basis. NMFS stopped scheduling
RFDs in 2008, as General category landings over that timeframe were
lower compared to the late 1990s and the General category fishery did
not need to be closed.
Due to increased BFT landings rates in the General category in 2019
and 2020 and numerous requests from members of the Atlantic HMS
Advisory Panel, General category quota participants, and Atlantic tunas
dealers, NMFS proposed to schedule RFDs on all Tuesdays, Fridays, and
Saturdays from July 20 through November 30, 2021 (86 FR 25992, May 12,
2021). Due to administrative timing issues related to publication in
the Federal Register, NMFS established RFDs on all Tuesdays, Fridays,
and Saturdays from September 3 through November 30, 2021 (86 FR 43421,
August 9, 2021). Because the use of RFDs in 2021 succeeded in extending
fishing opportunities through a greater portion of the relevant time
periods and the fishing year overall consistent with management
objectives for the fishery, NMFS finalized an RFD schedule for the 2022
fishing year of all Tuesdays, Fridays, and Saturdays from July 1
through November 30, 2022 (87 FR 33056, June 1, 2022). In 2023, NMFS
proposed the same weekly schedule for the July through November
timeframe, along with extending RFDs to the winter fishery (i.e., the
December and January through March time periods). Based on public
comment and a review of average daily catch rates in previous fishing
years, NMFS determined that finalizing an RFD schedule for the December
2023 or January through March 2024 time periods was unwarranted at that
time. Thus, NMFS finalized an RFD schedule of all Tuesdays, Fridays,
and Saturdays from July 1 to November 30, 2023 (88 FR 33839, May 25,
2023).
BFT General Category Retention Limits
NMFS established a default daily retention limit for large medium
and giant BFT of one fish per vessel in 1995 (60 FR 38505, July 27,
1995). To provide for maximum utilization of the quota, NMFS had the
flexibility to increase or decrease the large medium and giant BFT
daily retention limit over a range of zero (on RFDs) to a maximum of
three per vessel via an inseason action. In 2011, NMFS adjusted the
upper limit of this range to five fish per vessel to increase
opportunities to harvest the General category quota while maintaining
the default retention limit of one fish per vessel (76 FR 74003,
December 30, 2011). The default retention limit was maintained through
2018, when NMFS published a final rule that made editorial corrections
amending the regulations for HMS (83 FR 33148, July 17, 2018). In that
action, NMFS inadvertently removed regulatory text stating the default
retention limit on non-RFD fishing days. To correct this technical
error, with this action NMFS proposes to again establish default
General category retention limits on non-RFDs.
Proposed RFD and Retention Limit Measures
The purpose of this proposed action is to modify the process of
scheduling RFDs and reestablish General category default daily
retention limits for large medium or giant BFT on open days. As effort
controls, both RFDs and daily retention limits are meant to extend
General category fishing opportunities through a greater portion of the
General category time period subquotas, prevent overharvest of quota in
any period, and improve distribution of fishing opportunities without
increasing BFT mortality. NMFS has prepared a draft Environmental
Assessment (EA), Regulatory Impact Review (RIR), and an Initial
Regulatory Flexibility Analysis (IRFA) that present and analyze the
anticipated environmental, social, and economic impacts of each
alternative considered for this proposed rule. A brief summary of the
alternatives considered is provided below. Additional information
regarding this action and BFT management overall can be found in the
FMP and its amendments, the annual HMS Stock Assessment and Fishery
Evaluation Reports, and online at <a href="https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species">https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species</a>.
Under Alternative B, which NMFS is considering as four sub-
alternatives (B1 is the preferred alternative), NMFS would modify the
process for setting an RFD schedule. Under these alternatives, instead
of conducting an annual rulemaking to set an annual RFD schedule, NMFS
would set a default RFD schedule for specific General category time
periods and days for the 2024 fishing year and subsequent years. If the
scheduled RFDs are codified, NMFS may remove them or establish
additional RFDs, as appropriate, through further rulemaking. In recent
years, NMFS has noticed that the number of BFT landed but unsold by
General category quota participants have increased in association with
high rates of landings. Codifying RFDs would provide General category
quota participants and dealers advanced time (i.e., more than a month)
to plan and coordinate activities for the expected time periods with
high BFT landings rates, potentially decreasing the amount of BFT that
are landed but unsold. Under the preferred alternative for an RFD
schedule (Alternative B1), NMFS would codify a 3-day RFD schedule for
every Tuesday, Friday, and Saturday from July 1 through November 30.
NMFS has used this RFD schedule since 2022 to correspond with the time
periods when catch rates have been historically high in the General
category often resulting in premature closures of the fishery. The
preferred RFD schedule would allow for two consecutive 2-day periods
each week (Sunday-Monday; Wednesday-Thursday). This schedule would
increase the efficient utilization of the BFT resource. It would allow
dealers to plan to move BFT product through the market and therefore
reduce the amount of General category BFT landed but unsold.
Additionally, codifying this schedule could allow for
[[Page 13669]]
some commercial fishing activity each weekend (i.e., on Sunday).
Providing the opportunity for the time periods to last as long as
possible would likely increase General category participation by
commercial fishermen and provide access to fishing grounds while BFT
are available. Furthermore, because this schedule would allow for at
least 1 day of fishing on a weekend, which is when many tournaments
operate, this specific RFD schedule would allow General category quota
participants the opportunity to participate in at least 1 day of
fishing tournaments.
NMFS may waive these scheduled RFDs for the specific time periods
and days on which they apply by adjusting the daily BFT retention limit
from zero up to five after considering the 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 would 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 tag-and-
release fishing for BFT under Sec. 635.26(a).
Under the preferred alternative for a General category daily
retention limit (Alternative D3), NMFS would establish a General
category daily retention limit of three large medium or giant BFT per
vessel on open days in June and one large medium or giant BFT per
vessel on open days for all other months in time periods where the
fishery is open (i.e., January through March and July through December;
note that the General category BFT fishery is not open during the
months of April and May). In recent years, NMFS has increased the daily
retention limit to three BFT in June when landing rates are low and
then decreased the daily retention limit to one BFT when landing rates
increased. This alternative would allow the continuation of a three-
fish retention limit during the month of June when landing rates are
low, thus providing some benefit to those General category quota
participants that could retain more than one BFT during a period in
which NMFS typically has increased the retention limit.
These preferred alternatives would help General category quota
participants, tournament operators, and dealers with fishery-related
planning (e.g., fishers' travel to fishing grounds or engage in other
fishing endeavors) by providing an advance schedule of open and closed
days and the applicable retention limits when the fishery is open.
Furthermore, the preferred alternatives would provide an administrative
cost savings as the Agency would publish fewer Federal Register actions
setting RFD schedules on an annual basis and inseason retention limits
adjustments for the General category fishery. Overall, these preferred
alternatives meet the goals and objectives of this action and are
expected to have neutral to minor beneficial ecological, social, and
economic impacts.
In addition to the proposed measures, in the draft EA for this
action, NMFS analyzed a status-quo alternative (Alternative A) that
would maintain the recent practice of NMFS conducting annual rulemaking
to set a schedule of RFDs for upcoming fishing years. NMFS does not
prefer the no action alternative as administrative timing issues could
occur related to final publication of an RFD schedule (similar to the
2021 RFD rulemaking) resulting in a later start of RFDs. Furthermore,
Alternative A would not provide the same benefit to General category
quota participants, tournament operators, and dealers in terms of being
able to plan for RFDs. The draft EA for this action also describes the
impacts of three other RFD schedules: a 3-day-per-week RFD schedule for
every Thursday, Friday, and Saturday from July 1 through November 30
(Alternative B2); a 3-day-per-week RFD schedule for every Friday,
Saturday, and Sunday from July 1 through November 30 (Alternative B3);
and a 4-day (or more)-per-week RFD schedule from July 1 through
November 30 (Alternative B4). Although Alternatives B2, B3, and B4
could pace landings just as or more effectively than the preferred
alternative, implementing any of these alternatives is unlikely to
allow adequate time for fish products to move through the market.
Consecutive RFDs could result in market gluts leading to an influx of
BFT product (i.e., consecutive fishable days per week could lead to an
oversupply of BFT that are landed and unable to be sold). These market
gluts as a result could continue the recent trend of BFT being landed
by General category quota participants but not sold to dealers.
The draft EA also describes the impacts of eliminating RFDs
(Alternative C). NMFS does not prefer this alternative as it would not
meet the objectives of this rulemaking inasmuch as it would result in
shorter time periods when fishing is allowed and thus reduced fishing
opportunity.
Lastly, the draft EA describes the impacts of two other
alternatives for General category default daily retention limits as
follows: maintain the current regulations at Sec. 635.23(a)(3), which
do not establish a default retention limit on open days (i.e., non-
RFDs) when the General category is open (Alternative D1); and establish
a General category default daily retention limit of one large medium or
giant BFT (i.e., one fish measuring 73 inches (185 cm) curved fork
length or greater) per vessel on open days when the General category is
open, for all General category time periods, or unless adjusted with an
inseason action, if warranted (Alternative D2). NMFS does not prefer
Alternatives D1 and D2 because General category quota participants may
be limited by either not knowing the retention limit until publication
of an action or by having a one-fish retention limit which may slightly
adversely impact those fishermen who might be able to land and retain
more than one BFT during the month of June when NMFS typically
increases the retention limit.
Proposed Regulatory Clarification of Dealer Activities on RFDs
Dealer reporting regulations apply to all dealers who first receive
HMS products (Sec. 635.5(b)). Under Sec. 635.2, ``first receive''
means to take possession for commercial purposes of any HMS or any part
thereof by purchasing, trading or bartering for it from the fishing
vessel owner or operator once it is offloaded, except when such
possession is solely for transport. A BFT dealer or a dealer's agent
must affix a dealer tag to each BFT purchased or received from a U.S.
vessel immediately upon offloading the BFT (Sec. 635.5(b)(2)(ii)). As
defined under Sec. 635.2, a dealer tag is a numbered, flexible, self-
locking ribbon issued by NMFS to a dealer for the identification of BFT
sold to a permitted dealer. A dealer tag is not transferable and is
usable only by the dealer to whom it is issued. Id. Dealer tags may not
be reused once affixed to a tuna or recorded on a package, container,
or report. Id. The dealer tag must remain on the fish until it is cut
into portions. Id. If the BFT or BFT parts subsequently are packaged
for transport for domestic commercial use or for export, the number of
the dealer tag or the BSD tag must be written legibly and indelibly on
the outside of any package containing the tuna. Id. Such tag number
also must be recorded on any document accompanying the shipment of BFT
for commercial use or export. Id.
With the recent use of RFDs, NMFS has received questions about
dealer requirements relative to RFDs (e.g., timing of transfer and sale
to a dealer,
[[Page 13670]]
timing of affixing a dealer tag). NMFS is also aware of situations in
which permitted dealers provide an individual with dealer tags on open
days and RFDs in an attempt to allow the individual to act as a
dealer's agent for the purposes of tagging a commercially landed BFT
when a dealer is unavailable to first receive BFT on that day. To
address these ongoing questions and concerns and assist with
enforcement of RFDs, NMFS is proposing clarifications to the
regulations as outlined below.
Currently, 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 (Sec.
635.23(a)(2)). HMS Charter/Headboat permitted vessels with a commercial
sale endorsement also are subject to these restrictions that preclude
fishing commercially for BFT or selling the 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 (Sec. 635.23(c)(2)). NMFS
is not proposing changes to these restrictions that apply on RFDs.
Accordingly, regardless of when a BFT is landed by a General
category permitted vessel or an HMS Charter/Headboat permitted vessel
with a commercial sale endorsement fishing commercially for BFT under
the General category restrictions and retention limits, BFT that is
intended for sale must be in the possession of a permitted dealer no
later than 2400 local time the day prior to an RFD (i.e., the open day
before an RFD). Any commercially landed BFT that is in the possession
of a General category permit holder or an HMS Charter/Headboat permit
holder with a commercial sale endorsement operating under the
commercial restrictions and regulations at 0000 local time on an RFD is
in violation of the RFD regulations at Sec. Sec. 635.2 and 635.23(a).
Atlantic Tunas General category and HMS Charter/Headboat permit holders
that intend to sell BFT must land and transfer the BFT to a permitted
dealer or dealer's agent no later than 2400 local time the day prior to
an RFD. If the permit holder is unable to sell or otherwise transfer
the BFT to a permitted dealer before 2400, the permit holder must
follow the restrictions applicable to landed but not sold BFT specified
at Sec. 635.5(a)(3). Such permit holders may not be in possession of a
BFT after 0000 local time on an RFD. NMFS is proposing changes to
Sec. Sec. 635.23(a) and 635.31(a) to incorporate these clarifications.
To remain in compliance, NMFS encourages fishermen and dealers to plan
ahead and make arrangements to land, tag, and sell BFT before midnight
when the following day is an RFD. No BFT may be possessed, landed,
tagged, or sold on an RFD, even if the BFT was harvested on an open day
but the vessel returned to port too late to meet a dealer.
NMFS is also proposing modifications to the applicable dealer
regulations in section Sec. 635.5(b) to clarify that, on an RFD, a
dealer or dealer's agent may not purchase or place a dealer tag on a
BFT that is on or has been offloaded from an Atlantic Tunas General
category or HMS Charter/Headboat category permitted vessel, regardless
of when the fish was landed. Similarly, NMFS proposes in section Sec.
635.5(b)(2)(ii)(A) that a dealer or dealer's agent must affix a dealer
tag to each BFT purchased or first received from a U.S. vessel
immediately upon offloading the BFT. On an RFD, a dealer or dealer's
agent may continue to first receive, place dealer tags on, or purchase
BFT from vessels with other Atlantic Tunas permits (i.e., Harpoon,
Longline, Trap) (Sec. 635.4(d)(1)). NMFS is also proposing to clarify
that a dealer's agent is a person who is currently employed by a place
of business covered by the dealer's permit; is a primary participant in
the identification, weighing, and/or first receipt of fish as they are
received; and fills out dealer reports as required under Sec. 635.5.
This interpretation of a dealer's agent is consistent with the
description of a dealer proxy under Sec. 635.8(b)(4). Finally, NMFS is
clarifying the meaning of ``BSD'' in the definition of a BSD tag at
Sec. 635.2 to be ``bluefin statistical document.'' The effects of
these changes are primarily administrative and no environmental or
economic effects are anticipated.
Classification
Pursuant to section 304(g) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined that this proposed rule is
consistent with the 2006 Consolidated HMS FMP and its amendments, other
provisions of the Magnuson-Stevens Act, ATCA, and other applicable law,
subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Although the agency has concluded that the proposed rule will not
have a significant economic impact on a substantial number of small
entities, in the interest of transparency an IRFA was prepared
consistent with the standards in section 603 of the Regulatory
Flexibility Act (RFA). The IRFA describes the economic impact that this
proposed rule, if adopted, would have on small entities. A description
of the action, why it is being considered, and the legal basis for this
action are contained at the beginning of this section in the preamble
and in the SUMMARY section of the preamble. A summary of the analysis
follows. A copy of this analysis is available from NMFS (see ADDRESSES
section).
Section 603(b)(1) of the RFA requires agencies to describe the
reasons why the action is being considered. The purpose of this
proposed rulemaking is, consistent with the objectives of the 2006
Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act,
ATCA, and other applicable law, to modify the process of scheduling
RFDs and reestablish a General category default daily retention limit
for large medium or giant BFT on open days. As effort controls, both
RFDs and daily retention limits are meant to extend General category
fishing opportunities through a greater portion of the General category
time period subquotas, prevent overharvest of quota in any period, and
improve distribution of fishing opportunities without increasing BFT
mortality. Lastly, this action would clarify existing HMS dealer
regulations and the definition of a BSD tag to improve the
understanding of vessel and dealer restrictions and requirements for
participants in the General category BFT fishery.
Section 603(b)(2) of the RFA requires agencies to state the
objectives of, and legal basis for, the proposed action. The objective
of this proposed rulemaking to simplify and clarify the regulatory
process regarding RFDs. RFDs increase the likelihood of pacing General
category landings to extend fishing opportunities through a greater
portion of the General category time period subquotas. Additionally,
this proposed action would clarify the General category retention limit
on open days for better understanding by General category quota
participants and clarify the existing dealer requirements to ensure
better compliance by dealers and dealers' agents when operating on an
RFD. The legal basis for the proposed rule is the Magnuson-Stevens Act.
Section 603(b)(3) 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, North American Industry Classification System (NAICS 11411),
for RFA compliance purposes. The Small Business Administration (SBA)
[[Page 13671]]
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 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. As
of October 2022, there are 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 603(b)(4) of the RFA requires agencies to describe any new
reporting, record-keeping, and other compliance requirements. This
proposed rule does not contain any new collection of information,
reporting, or record-keeping requirements. This proposed rule would
modify the process of scheduling RFDs, set a schedule of RFDs for 2024
fishing year and subsequent fishing years, reestablish a General
category default retention limit for BFT on open days (i.e., non-RFDs),
and make modifications to the HMS dealer regulations to clarify dealer
and dealer agent activities on RFDs.
Under section 603(b)(5) of the RFA, agencies must identify, to the
extent practicable, relevant Federal rules which duplicate, overlap, or
conflict with the proposed action. Fishermen, dealers, and managers in
these fisheries must comply with a number of international agreements,
domestic laws, and other fishery management measures. These include,
but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas
Fishing Compliance Act, the Marine Mammal Protection Act, the
Endangered Species Act, the National Environmental Policy Act, the
Paperwork Reduction Act, and the Coastal Zone Management Act. This
proposed action has been determined not to duplicate, overlap, or
conflict with any Federal rules.
Under section 603(c) of the RFA, agencies must describe any
significant alternatives to the proposed rule which accomplish the
stated objectives of applicable statutes and which minimize any
significant economic impact of the proposed rule on small entities.
Specifically, the RFA (5 U.S.C. 603(c)(1) through (4)) lists four
general categories of significant alternatives to assist an agency in
the development of significant alternatives. These categories of
alternatives are: (1) establishment of differing compliance or
reporting requirements or timetables that take into account the
resources available to small entities; (2) clarification,
consolidation, or simplification of compliance and reporting
requirements under the rule for such small entities; (3) use of
performance rather than design standards; and (4) exemptions from
coverage of the rule, or any part thereof, for small entities.
Regarding the first, second, and fourth categories, NMFS cannot
establish differing compliance or reporting requirements for small
entities or exempt small entities from coverage of the rule or parts of
it because all of the businesses impacted by this rule are considered
small entities, and thus the requirements are already designed for
small entities. Regarding the third category, NMFS does not know of any
performance or design standards that would satisfy the aforementioned
objectives of this rulemaking. As described below, NMFS analyzed
several different alternatives in this proposed rulemaking and provides
rationales for identifying the preferred alternatives to achieve the
desired objectives. NMFS did not develop alternatives for the
regulatory clarifications of dealer activities on RFDs. The effects of
these changes are primarily administrative and no environmental or
economic effects are anticipated.
The alternatives considered and analyzed are described below. The
IRFA assumes that each vessel will have similar catch and gross
revenues to show the relative impact of the proposed action on vessels.
Under Alternative A, the status-quo alternative, NMFS would
maintain the status quo and, as needed, would conduct annual rulemaking
for RFDs. The average annual revenue for BFT landed in the General
category is approximately $9.9 million based on the average ex-vessel
price from 2018 through 2022 and adjusted for inflation using the GDP
Deflator. Overall, RFDs do not modify the General category quota and
are designed to extend fishing opportunities through a greater
proportion of the time periods in which they apply by spreading fishing
effort out over time. 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 short-term increase in BFT prices, and the value of
BFT for the applicable General category time periods could increase.
These increases in price are unlikely to impact the overall average
annual revenue. NMFS expects this status quo alternative would have
neutral economic impacts as it does not expect this alternative to have
new economic impacts on small entities participating in the fishery.
Under Alternative B, which NMFS is considering as four sub-
alternatives (B1 is the preferred alternative), NMFS would modify the
process for setting an RFD schedule. Under this alternative, NMFS would
no longer conduct an annual rulemaking to set an RFD schedule but would
codify the General category time periods and days in which RFDs would
be applied. NMFS may waive these scheduled RFDs for the specific time
periods and days on which they apply by adjusting the daily BFT
retention limit from zero up to five after considering the criteria at
Sec. 635.27(a)(7). 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 tag-
and-release fishing for BFT under Sec. 635.26(a). Codification of RFDs
would provide greater certainty and predictability than annual RFD
rulemaking, providing some positive economic impacts to General
category participants and dealers in terms of business planning. As
stated above, the average annual revenue for BFT landed in the General
category is approximately $9.9 million based on the average ex-vessel
price from 2018 through 2022 and adjusted for inflation using the GDP
Deflator. 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
short-term increase in BFT prices, and the value of BFT for the
applicable General category time periods could increase.
As part of Alternative B, NMFS is considering four sub alternatives
specifying different days of the week when RFDs would take place to the
RFD schedule for 2024 and subsequent years. In general, three of the
sub alternatives (B1, B2, B3) have similar economic impacts because
they establish the same number of RFDs and RFDs do not modify the
General category quota and are designed to extend fishing opportunities
through a greater proportion of the time periods in which they apply by
spreading fishing effort out over time. To the extent that the ex-
[[Page 13672]]
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 short-term increase in BFT prices,
and the value of the General category time period subquotas could
increase.
Under Alternative B1, the preferred alternative, NMFS would codify
a 3-day-per-week RFD schedule for every Tuesday, Friday, and Saturday
from July 1 through November 30. This sub alternative could have
neutral to minor beneficial economic impacts on small entities
participating in the fishery beyond those currently occurring because
of the ability to plan provided by the schedule of RFDs, but these
short-term increases in price are unlikely to impact the overall
average annual revenue.
Under Alternative B2, NMFS would codify a 3-day-per-week RFD
schedule for every Thursday, Friday, and Saturday from July 1 through
November 30. This sub alternative could have neutral to minor adverse
economic impacts on small entities participating in the fishery as four
consecutive landings days could increase the influx of BFT products
into the market resulting in a short-term decrease in ex-vessel prices
and revenues for General category participants. This short-term
decrease in BFT prices are unlikely to impact the overall average
annual revenue.
Under Alternative B3, NMFS would codify a 3-day-per-week RFD
schedule for every Friday, Saturday, and Sunday from July 1 through
November 30. This sub-alternative could have neutral to minor adverse
economic impacts on small entities participating in the fishery as RFDs
for an entire weekend could negatively impact General category
participants who can only commercially fish on the weekends. Many
participants are known to work in other sectors on weekdays and are
only available to fish part-time on weekends. Additionally allowing
four consecutive landing days could increase the influx of BFT products
into the market resulting in a short-term decrease in ex-vessel prices
and revenues for General category participants. This short-term
decrease in BFT prices are unlikely to impact the overall average
annual revenue.
Under Alternative B4, NMFS would codify a 4-day (or more)-per-week
RFD schedule. This sub alternative could have minor adverse to adverse
economic impacts on small entities participating in the General
category fishery as four or more RFDs could, rather than extending
fishing opportunities, actually limit opportunities for General
category participants to land the quota and subquotas resulting in
derby-like conditions. This derby-like effect could lead to an influx
of BFT products into the market that could result in a decrease in ex-
vessel prices and revenues for General category participants, which may
negatively impact overall average revenue. In addition, variable
weather conditions where General category participants may be unable to
take advantage of more limited open days may lead to an underharvest of
the General category quota and subquotas, and underutilization of the
available fishery resource.
Under Alternative C, NMFS would remove RFDs from the existing HMS
regulations and no longer set RFDs for the General category. As stated
earlier in this document, the goal of RFDs are to extend General
category fishing opportunities through a greater portion of the General
category time periods. Without RFDs, high catch rates early in each
time period would prompt NMFS to prematurely close the General category
because the quota has been reached, even though fish may still be
available on fishing grounds. This premature closure would mean
commercial fishermen operating under the General category could not
fish for, possess, retain, or sell commercial sized fish. 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 short-term increase in BFT
prices, and the value of the General category time period subquotas
could increase. This alternative could have neutral to minor adverse
economic impacts on small entities participating in the fishery.
General category participants would likely land the subquotas over an
extremely short time period increasing the influx of BFT products into
the market, potentially resulting not only in an earlier closure of the
fishery but also a slight decrease in ex-vessel prices and revenues for
General category participants which may negatively impact overall
average revenue.
Under Alternative D1, the status-quo alternative, NMFS would
maintain the current regulations at Sec. 635.23(a)(3) which do not
establish a default retention limit on open days (i.e., non-RFDs) when
the General category is open. Under this alterative NMFS may set the
General category default daily retention limit for large medium or
giant BFT over a range of zero (on RFDs) to five BFT per vessel for
each time period in an action published in the Federal Register. The
daily retention limit would apply to General category permitted vessels
and HMS Charter/Headboat permitted vessels with a commercial sale
endorsement when fishing commercially for BFT. Overall, the use of
retention limits would likely have neutral to minor beneficial economic
impacts on small entities participating in the General category fishery
as they could extend the length of the General category time periods
when BFT can be landed, providing additional fishing opportunities
while also reducing the influx of BFT products into the market which
could result in a short-term increase in ex-vessel prices for General
category participants. This short-term increase in BFT prices are
unlikely to impact the overall average annual revenue. NMFS expects the
status-quo alternative to have neutral economic impacts as it does not
change existing management.
Under Alternative D2, NMFS would establish a General category
default daily retention limit of one large medium or giant BFT per
vessel on days when the General category is open. The daily retention
limit would apply to General category permitted vessels and HMS
Charter/Headboat permitted vessels with a commercial sale endorsement
when fishing commercially for BFT. Retention limits would likely have
neutral to minor beneficial economic impacts on small entities
participating in the General category fishery as they could extend the
length of the General category time periods when BFT can be landed,
providing additional fishing opportunities while also reducing the
influx of BFT products into the market which could result in a short-
term increase in ex-vessel prices for General category participants.
However, since the current practice in recent years is to set a daily
retention limit of three large medium or giant BFT per vessel on days
when the General category is open, starting June 1 through June 30, a
default of one BFT could potentially constrain the revenue of vessels
that might have been able to land two or three BFT on open days from
June 1 through June 30. Although this alternative may have a short-term
minor adverse impact on a limited number of individuals and their
revenues (likely resulting in a short-term decrease in ex-vessel
prices), NMFS expects that the
[[Page 13673]]
overall average annual revenue would unlikely be impacted.
Under Alternative D3, the preferred alternative, NMFS would
establish a General category daily retention limit of three large
medium or giant BFT per vessel on open days in June and one large
medium or giant BFT on days during all other months when the fishery is
open (i.e., January through March and July through December; the
General category BFT fishery is not open during the months of April and
May) unless adjusted with an inseason action. The daily retention limit
would apply to General category permitted vessels and HMS Charter/
Headboat permitted vessels with a commercial sale endorsement when
fishing commercially for BFT. Retention limits would likely have
neutral to minor beneficial economic impacts on small entities
participating in the General category fishery as retention limits could
extend the length of the General category time periods when BFT can be
landed, providing additional fishing opportunities while also reducing
the influx of BFT products into the market which could result in an
increase in a short-term increase ex-vessel prices for General category
participants. Implementation of these default retention limits would
align with current management practices and provide additional fishing
opportunities in all respective time periods. Codifying the current
retention limits management practices would potentially reduce some
uncertainty regarding future retention limits for General category
participants and dealers and thus lead to some positive economic
impacts associated with their improved business planning. NMFS expects
that the overall average annual revenue would be unlikely to be
impacted.
This proposed rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Statistics,
Treaties.
Dated: February 15, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 635 as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
1. The authority citation for part 635 continues to read as follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
2. In Sec. 635.2, revise the definition for ``BSD tag'' to read as
follows:
Sec. 635.2 Definitions.
* * * * *
Bluefin statistical document (BSD) tag means a numbered tag affixed
to a BFT issued by any country in conjunction with a catch statistics
information program and recorded on a BSD.
* * * * *
0
3. In Sec. 635.5, revise paragraph (b)(2)(ii)(A) to read as follows:
Sec. 635.5 Recordkeeping and reporting.
* * * * *
(b) * * *
(2) * * *
(ii) * * *
(A) Affixing dealer tags. A dealer or a dealer's agent must affix a
dealer tag to each BFT purchased or first received from a U.S. vessel
immediately upon offloading the BFT. A dealer's agent is a person who
is currently employed by a place of business covered by the dealer's
permit; is a primary participant in the identification, weighing, and/
or first receipt of fish as they are received; and fills out dealer
reports as required under Sec. 635.5. If a vessel is placed on a
trailer, the dealer or dealer's agent must affix the dealer tag to the
BFT immediately upon the vessel being removed from the water. The
dealer tag must be affixed to the BFT between the fifth dorsal finlet
and the caudal keel. Regardless of when the BFT was landed, on an RFD
(as specified at Sec. 635.23(a)), no dealer or dealer's agent shall
purchase, first receive, or affix a dealer tag to a BFT that is on or
from a vessel that has an Atlantic Tunas General category permit or HMS
Charter/Headboat permit with a commercial sale endorsement.
* * * * *
0
4. In Sec. 635.23, revise paragraphs (a) and (c)(3) to read as
follows:
Sec. 635.23 Retention limits for bluefin tuna.
* * * * *
(a) General category.
(1) No school, large school, or small medium size class BFT may be
possessed, retained, landed, or sold on or from a vessel that has an
Atlantic Tunas General category permit.
(2) The following default daily retention limits apply to vessels
that have an Atlantic Tunas General category permit or HMS Charter/
Headboat permit with a commercial sale endorsement fishing under the
General category restrictions and retention limits when the General
category is open and the day is not an RFD and the retention limit has
not been adjusted per paragraph (a)(3) of this section.
(i) January 1 through March 31--one large medium or giant BFT, per
vessel per day;
(ii) June 1 through June 30--three large medium or giant BFT per
vessel per day; and
(iii) July 1 through December 30--one large medium or giant BFT per
vessel per day.
(3) To provide for maximum utilization of the quota for BFT, NMFS
may adjust the daily retention limit of large medium or giant BFT over
a range from zero (on RFDs) to a maximum of five per vessel per the
inseason criteria provided under Sec. 635.27(a)(7).
(4) Regardless of the length of trip, no person may land, possess,
or retain more than the daily retention limit in effect for that day.
When the applicable retention limit for large medium or giant BFT has
been reached, no person aboard such vessels may continue to fish, and
the vessel must immediately proceed to port.
(5) From July 1 through November 30 of each year, every Tuesday,
Friday, and Saturday is an RFD unless waived per paragraph (a)(7) of
this section. On an RFD, no person who has been issued an Atlantic
Tunas General category permit or issued an HMS Charter/Headboat permit
and fishing commercially may fish for, possess, retain, land, or sell a
BFT of any size class; or catch and release or tag and release, as
specified under Sec. 635.26(a), a BFT of any size class.
(6) NMFS may remove or establish additional designated RFDs, as
appropriate, following public comment via publication in the Federal
Register.
(7) Designated RFDs may be waived in the following circumstances.
(i) If the General category fishery is closed under Sec.
635.28(a), any remaining RFDs for the relevant time period(s) are
waived so that persons aboard vessels issued an Atlantic Tunas General
category permit may conduct tag-and-release for BFT under Sec.
635.26(a).
(ii) If, based on the criteria at Sec. 635.27(a)(7), NMFS
determines that RFDs are not necessary, NMFS may waive RFDs by
increasing the daily retention limit per paragraph (a)(3) for a
specific time period(s) via publication in the Federal Register.
* * * * *
(c) * * *
(3) When fishing other than in the Gulf of Mexico when the General
[[Page 13674]]
category fishery is open and no RFD is in effect, 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 (2) and paragraphs (4) through (5) 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.
* * * * *
0
5. In Sec. 635.31, revise paragraph (a)(1) and add paragraph
(a)(2)(iii) to read as follows:
Sec. 635.31 Restrictions on sale and purchase.
(a) * * *
(1) A person who owns or operates a vessel from which an Atlantic
tuna is landed or offloaded may sell such Atlantic tuna only if that
vessel has a valid HMS Charter/Headboat permit with a commercial sale
endorsement; a valid Atlantic Tunas General, Harpoon, Longline, or Trap
category permit; or a valid HMS Commercial Caribbean Small Boat permit
issued under this part and the appropriate category has not been closed
as specified at Sec. 635.28(a). No person may sell a BFT smaller than
the large medium size class. No large medium or giant BFT may be sold
if caught by a person aboard a vessel with an Atlantic HMS Charter/
Headboat permit fishing in the Gulf of Mexico at any time or outside
the Gulf of Mexico when the General category fishery has been closed
(see Sec. 635.23(c)). A person may sell Atlantic BFT only to a dealer
that has a valid permit for purchasing Atlantic tunas issued under this
part. A person may not sell or purchase Atlantic tunas harvested with
speargun fishing gear. A person issued an Atlantic Tunas General
category permit or HMS Charter/Headboat permit with a commercial sale
endorsement must land, sell or transfer a BFT to a dealer that has a
valid permit for purchasing Atlantic tunas no later than 2400 local
time the day prior to an RFD, as specified at Sec. 635.23(a). If that
person is unable to sell or otherwise transfer the BFT to a dealer who
has a dealer permit for Atlantic tunas no later than 2400, the person
must follow the restrictions applicable to landed but not sold BFT
specified at Sec. 635.5(a)(3). In no case shall such person possess a
BFT on an RFD.
(2) * * *
(iii) Dealers may not first receive a BFT from a vessel that has a
valid Atlantic Tunas General permit or HMS Charter/Headboat permit with
a commercial sale endorsement after 0000 local time on an RFD, as
specified at Sec. 635.23(a).
* * * * *
0
6. In Sec. 635.71, revise paragraphs (b)(13) and (29) to read as
follows:
Sec. 635.71 Prohibitions
* * * * *
(b) * * *
(13) As a vessel with an Atlantic Tunas General category permit,
fail to immediately cease fishing and immediately return to port after
catching the applicable limit of large medium or giant bluefin tuna on
a commercial fishing day, as specified in Sec. 635.23(a)(4).
* * * * *
(29) As a dealer or dealer's agent, purchase, first receive, or
affix a dealer tag to a BFT that is on or from a vessel that has been
issued an Atlantic Tunas General category permit or HMS Charter/
Headboat permit with a commercial sale endorsement, as specified in
Sec. 635.5(b)(2)(ii)(A) after 0000 local time on an RFD.
* * * * *
[FR Doc. 2024-03594 Filed 2-22-24; 8:45 am]
BILLING CODE 3510-22-P
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