[Federal Register Volume 86, Number 150 (Monday, August 9, 2021)]
[Rules and Regulations]
[Pages 43421-43428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16685]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 210730-0155]
RIN 0648-BK37


Atlantic Highly Migratory Species; General Category Restricted-
Fishing Days

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule sets Atlantic bluefin tuna (BFT) General 
category restricted-fishing days (RFDs) for the 2021 fishing year; 
clarifies the regulations regarding applicability of RFDs to Highly 
Migratory Species (HMS) Charter/Headboat permitted vessels; and 
corrects references to the Atlantic Tunas General category permit in a 
section of the Atlantic HMS regulations. This final rule establishes 
RFDs for specific days during the months of September through November 
2021. On an RFD, Atlantic Tunas General category permitted vessels may 
not fish for (including catch-and-release or tag-and-release fishing), 
possess, retain, land, or sell BFT. On RFDs, persons aboard HMS 
Charter/Headboat permitted vessels with a commercial sale endorsement 
are prohibited from fishing commercially for BFT. Persons aboard all 
HMS Charter/Headboat permitted vessels can fish recreationally for BFT 
under the applicable Angling category restrictions and retention 
limits.

DATES: This final rule is effective on August 9, 2021.

ADDRESSES: Copies of this rule and supporting documents, including the 
Final Regulatory Flexibility Analysis (FRFA) for this action, are 
available from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species or by 
contacting Larry Redd at [email protected] or 301-427-8503.

FOR FURTHER INFORMATION CONTACT: Larry Redd, Jr., [email protected], 
301-427-8503, or Sarah McLaughlin, [email protected], 978-281-
9260.

SUPPLEMENTARY INFORMATION: Atlantic HMS fisheries, including BFT 
fisheries, are managed under the authority of the Atlantic Tunas 
Convention Act (ATCA;

[[Page 43422]]

16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.). The 
2006 Consolidated Atlantic HMS Fishery Management Plan (2006 
Consolidated HMS FMP) and its amendments are implemented by regulations 
at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota, 
recommended by the International Commission for the Conservation of 
Atlantic Tunas (ICCAT) and as implemented by the United States, among 
the various domestic fishing categories per the allocations established 
in the 2006 Consolidated HMS FMP and its amendments. Among other 
restrictions and retention limits, section 635.23 specifies the 
retention limit provisions for Atlantic Tunas General category 
permitted vessels and HMS Charter/Headboat permitted vessels, including 
those applicable to persons aboard such permitted vessels on RFDs and 
on days other than RFDs.

Background

    Specific information regarding RFDs, requests for their resumed 
use, the current U.S. quota and General category subquotas, and the 
need to clarify the regulations regarding the applicability of RFDs to 
HMS Charter/Headboat permitted vessels, was provided in the preamble to 
the proposed rule (86 FR 25992, May 12, 2021) and is not repeated here.
    As described in the proposed rule, NMFS undertook this rulemaking 
to address and avoid repetition of certain issues that affected the 
General category BFT fishery in 2019 and 2020 and earlier. These issues 
include the shortened time to fish under the General category subquotas 
that occurs when the quota is filled quickly, increasing numbers of BFT 
that are landed but not sold to dealers because of market gluts, and 
the resulting decreased price of BFT.
    The comment period for the proposed rule closed on June 11, 2021. 
NMFS received 67 written comments, including comments from commercial 
and recreational fishermen, Atlantic tuna dealers, and the general 
public, as well as oral comments at a public webinar and at the HMS 
Advisory Panel meeting and public comment sessions at that meeting. The 
comments received, and responses to those comments, are summarized 
below in the Response to Comments section.
    After considering public comments on the proposed rule in light of 
the management goals of this action, NMFS decided to implement the RFD 
schedule as proposed (except for changing the start date of the first 
RFD to account for the date of publication of this final rule). 
Compared to the fishery in 2019 and 2020, implementing RFDs should slow 
the rate of landings and extend fishing opportunities for General 
category permit holders through a greater portion of the subquota 
periods while also addressing the issues mentioned above. As such, this 
final rule establishes RFDs for the 2021 BFT fishing year for the 
General category and makes minor revisions in the HMS regulations at 50 
CFR part 635. As described below, except for changing the start date of 
the first RFD to account for the date of publication of this final 
rule, no changes were made from the proposed rule. Implementing this 
RFD schedule, with the ability to waive scheduled RFDs, would slow the 
rate of landings to provide available quota throughout a longer 
duration of the General category subquota periods while providing 
reasonable fishing opportunities, including some fishing tournament 
opportunities, for all General category participants.
    Specifically, NMFS sets RFDs for the 2021 fishing year on the 
following days: All Tuesdays, Fridays, and Saturdays from September 3 
through November 30, 2021. On an RFD, Atlantic Tunas General category 
permitted vessels are prohibited from fishing for (including catch-and-
release and tag-and-release fishing), possessing, retaining, landing, 
or selling BFT. On these designated RFDs, persons aboard HMS Charter/
Headboat permitted vessels with a commercial sale endorsement also are 
prohibited from fishing commercially for BFT. Persons aboard all HMS 
Charter/Headboat permitted vessels can fish recreationally for BFT 
under the applicable Angling category restrictions and retention 
limits.
    NMFS may waive previously scheduled RFDs under certain 
circumstances. Consistent with Sec.  635.23(a)(4), NMFS may waive an 
RFD by adjusting the daily BFT retention limit from zero up to five on 
specified RFDs, after considering the inseason adjustment determination 
criteria at Sec.  635.27(a)(8). This would include, among other things, 
review of dealer reports, daily landing trends, and the availability of 
BFT on fishing grounds. NMFS will announce any such waiver by filing a 
retention limit adjustment with the Office of the Federal Register for 
publication. Such adjustments will be effective no less than 3 calendar 
days after the date of filing for public inspection with the Office of 
the Federal Register. NMFS also may waive previously designated RFDs 
effective upon closure of the General category fishery so that persons 
aboard vessels permitted in the General category may conduct tag-and-
release fishing for BFT as allowable under Sec.  635.26(a). However, 
should NMFS waive previously designated RFDs while the General category 
fishery is open, persons aboard vessels permitted in the General 
category may conduct catch and release or tag-and-release fishing for 
BFT as allowable under Sec.  635.26(a). NMFS will not modify RFDs set 
by this final rule during the fishing year in other ways (such as 
changing an RFD from one date to another or adding RFDs) other than 
waiving designated RFDs based on the circumstances described above.
    This final rule also clarifies existing regulatory text at Sec.  
635.23(c) about the applicability of RFDs to HMS Charter/Headboat 
permitted vessels, and makes a minor change to correct two permit title 
references in Sec.  635.23 of the regulations.

Response to Comments

    All written comments can be found at www.regulations.gov by 
searching for NOAA-NMFS-2021-0040. Below, NMFS summarizes and responds 
to all comments made specifically on the proposed rule during the 
comment period.
    Comment 1: NMFS received comments from General category fishermen, 
charter/headboat fishermen, and tournament operators both in support of 
and in opposition to General category RFDs for the 2021 fishing year. 
Most commenters in support of resuming the use of RFDs noted that RFDs 
should prevent market gluts and should lengthen the General category 
season within the subquota time-periods and the season overall. These 
commenters felt that lengthening the season into the fall/winter months 
when BFT are of better quality would result in higher prices for 
fishermen. Other commenters expressed concern that the proposed rule 
seemed to be economic in nature and would inappropriately manipulate 
the market. Additionally, several commenters opposed to RFDs expressed 
concern that this action is premature due to the unique impacts of 
COVID-19 in 2020, noting that global markets and economies are 
stabilizing and similar impacts should not be expected in 2021. 
Furthermore, some commenters expressed concern that RFDs would not 
result in extending the fishery, but instead would lead to a derby 
fishery resulting in flooded markets, lower BFT prices, and safety-at-
sea concerns associated with fishing in bad weather conditions.

[[Page 43423]]

    Response: RFDs can slow the rate of General category landings and 
extend fishing opportunities through a greater portion of the General 
category time-period subquotas. This final rule is not driven by purely 
economic-related objectives. The primary objective of the final rule is 
to slow the harvest rate of BFT in order to extend the period of time 
that the fishery may remain open to provide fishing opportunities 
longer in the season. The proposed rule did discuss past market 
conditions and recognized that this action should also help prevent 
large numbers of BFT from entering the market at the same time, and 
would potentially alleviate some negative economic impacts experienced 
by General category and Charter/Headboat permitted fishermen who could 
not find buyers for their BFT. This was not the primary objective of 
the rule, however. The primary objective of this action is to slow the 
rate of General category landings to extend fishing opportunities 
through a greater portion of the subquota periods. NMFS notes that BFT 
prices generally increase over the summer and fall period. NMFS 
acknowledges the unique impacts of COVID-19 in 2020; however, NMFS has 
observed the issues that contribute to the need for this action for 
several years, and those issues were exacerbated in both 2019 and 2020. 
Specifically, over the past several years, landings have been highest 
from mid-August through November, contributing to derby-like 
conditions, contributing to market gluts, shortening the time it takes 
to fill relevant subquotas, and resulting in inseason closures earlier 
than desired. If NMFS does not take action this year, it is likely 
these trends would continue. Overall, NMFS believes that by spreading 
out fishing effort over a longer period of time, safety-at-sea issues 
should decrease, as the conditions that encourage derby-like behavior 
would be diminished. NMFS recognizes that the weather is unpredictable, 
particularly in the second half of October and early November, and that 
poor weather may limit participation without the need for additional 
RFDs during this part of the season. Should BFT landings and catch 
rates merit waiving RFDs, NMFS could adjust the daily retention limit 
on waived days with a minimum 3-day notification to fishermen, by 
filing such an adjustment in the Federal Register, under 50 CFR 
635.23(a)(4).
    Comment 2: NMFS received comments both supporting the proposed 
Tuesday, Friday, and Saturday schedule of RFDs, and opposing the 
proposed schedule. Some commenters suggested modifications to the 
proposed schedule, including implementing RFDs earlier in June and/or 
avoiding weekends. One commenter objected to the proposed RFD schedule 
while also suggesting to start RFDs in September. Some commenters noted 
that Fridays and Saturdays are the days on which the demand to buy and 
sell BFT is greatest.
    Response: NMFS' proposed schedule of RFDs was based on a review of 
average daily catch rate data for recent years and a review of past 
years' RFD schedules and how they worked to extend the use of the 
General category quota. The Tuesday, Friday, and Saturday RFD schedule 
allows for two-consecutive-day periods twice each week (Sunday-Monday; 
Wednesday-Thursday) for General category and Charter/Headboat permitted 
vessels with a commercial sale endorsement to fish for and sell BFT. 
NMFS believes that two-consecutive-day periods twice each week would 
allow BFT products to move through the market while also allowing some 
commercial fishing activity to occur each weekend (i.e., Sundays). 
Given that the proposed rule published in May, and the comment period 
ended on June 11, 2021, NMFS could not implement RFDs starting June 1, 
2021. However, NMFS is establishing RFDs starting in September, when 
catch and landing rates substantially increase, resulting in General 
category subquotas being met and closures of applicable General 
category time-periods.
    NMFS recognizes that many General category fishery participants 
would like to maintain the opportunity to fish and sell on Fridays and 
weekends. However, NMFS selected Tuesdays, Fridays, and Saturdays based 
on input from Atlantic tunas dealers, General category participants, 
and members of the Atlantic HMS Advisory Panel. NMFS believes that this 
weekly schedule of RFDs should increase the likelihood of pacing 
General category landings to extend fishing opportunities through a 
greater portion of the subquota periods (similar to some past RFD 
schedules that applied in previous fishing years). It would also allow 
for two-consecutive-day periods twice each week (Sunday-Monday; 
Wednesday-Thursday) for BFT product to move through the market and also 
allow for some commercial fishing activity each weekend (i.e., Sunday).
    Comment 3: NMFS received several comments from General category and 
Charter/Headboat captains expressing support for this action, noting 
that RFDs allow Charter/Headboat captains the opportunity to sell fish 
on non-RFD days and to continue to charter on RFD days (i.e., under the 
Angling category regulations). These captains noted that recreational 
trips potentially will have higher catch rates as vessels can fish 
without having to compete with commercial fishing vessels.
    Response: As described in the proposed rule, resuming RFDs will 
allow persons aboard Charter/Headboat permitted vessels with a 
commercial sale endorsement the opportunity to fish commercially for 
BFT on non-RFDs and to charter on an RFD under the Angling category 
restrictions and limits. NMFS recognizes that the use of RFDs may allow 
for an increase in recreational catches of BFT on RFDs, but the purpose 
of this action is to extend the General category BFT fishery for the 
2021 fishing year. Although recreational landings may increase on RFDs, 
Charter/Headboat permitted vessels must abide by established retention 
limits; thus, NMFS anticipates that recreational landings would remain 
within the current annual Angling category quota.
    Comment 4: NMFS received comments, from both those in support of 
and opposed to RFDs, regarding the potential negative impacts of RFDs 
on BFT fishing tournaments. These commenters noted the economic 
importance of fishing tournaments on local economies and suggested that 
NMFS exempt participants in registered fishing tournaments from the RFD 
restrictions or increase the retention limit (i.e., waive RFDs) on 
tournament days.
    Response: NMFS acknowledges that RFDs that occur on a tournament 
date may affect BFT fishing at those tournaments as General category 
participants are prohibited from fishing for BFT on RFDs. However, on 
an RFD, General category participants may still participate in non-BFT 
fishing during the tournament, and may land sharks, swordfish, 
billfish, bigeye, albacore, yellowfin, and/or skipjack tunas 
recreationally as otherwise permitted. Additionally, on an RFD, 
Charter/Headboat permitted vessels may participate recreationally in 
HMS fishing tournaments, including for BFT, under the applicable 
Angling category restrictions and retention limits. Under the current 
regulations, tournament operators are required to register their 
tournament with NMFS at least four weeks prior to the start of the 
tournament. As such, NMFS is aware of several fishing tournaments that 
will likely include BFT that often occur in August through November. 
Should a tournament change its dates of operation, NMFS encourages 
tournament operators to contact NMFS to update the dates for which 
their

[[Page 43424]]

tournament is registered. NMFS does not plan to waive RFDs specifically 
to accommodate tournaments, as doing so could eliminate the benefits of 
RFDs by allowing General category and Charter/Headboat permitted 
vessels with a commercial sale endorsement the opportunity to land and 
sell commercial size BFT on those scheduled RFD dates. Furthermore, as 
explained above, General category and Charter/Headboat fishermen could 
still participate in tournaments during RFDs, albeit with the 
additional RFD restrictions and retention limits. NMFS will closely 
monitor BFT landings and catch rates and, should NMFS determine that 
waiving RFDs is warranted, NMFS could waive an RFD by adjusting the 
daily retention limits with a minimum 3-day notification to fishermen, 
by filing such an adjustment in the Federal Register, under 50 CFR 
635.23(a)(4).
    Comment 5: NMFS received several comments suggesting that NMFS 
should waive RFDs during HMS registered fishing tournaments because 
tournaments are a source of valuable scientific data and information 
for BFT.
    Response: NMFS understands the importance of fishing tournaments 
for the collection of scientific data on catch, effort, and 
participants, and the collection of biological samples. The scheduled 
RFDs will still allow the opportunity for valuable scientific data 
collection as recreational fishing tournaments can still proceed 
throughout the year. General category and Charter/Headboat fishermen 
could still participate in tournaments during RFDs, consistent with the 
applicable retention limits and RFD restrictions. Scientists who 
collect biological samples during fishing tournaments could still do 
so, even on an RFD, by collecting samples from those fish landed 
recreationally (under the Angling category) or as authorized under 
exempted fishing permits. NMFS will closely monitor BFT landings and 
catch rates and, should NMFS determine that waiving RFDs is warranted, 
NMFS could adjust the daily retention limits with a minimum 3-day 
notification to fishermen in the Federal Register, under 50 CFR 
635.23(a)(4). Without RFDs, subquota time-periods in the later part of 
the year often close early, even if BFT are available, which in turn 
limits valuable data collection among General category participants. 
NMFS believes that extending the fishing year via RFDs and other 
inseason actions will benefit scientific data collection by allowing 
for collection of data during time-periods when the General category 
fishery is otherwise closed.
    Comment 6: NMFS received comments of concern that increasing the 
General category retention limit from the default of one fish to three 
fish to begin the June through August time-period subquota (86 FR 
27814, May 24, 2021) was counterproductive to the goal of setting RFDs. 
Several commenters requested the use of mechanisms other than RFDs to 
extend the fishery, such as maintaining the default retention limit 
throughout the season, limiting entry into the fishery, considering 
different closure dates at the end of subquota periods, and increasing 
the price for fishing permits. These commenters noted that increasing 
outreach and education before permit issuance and promoting tagging 
could benefit the fishery.
    Response: This action focuses on implementing RFDs, as currently 
authorized in the regulations, to slow the rate of General category 
landings, prevent early closures, and extend fishing opportunities 
through a greater portion of the General category time-period subquotas 
for the 2021 fishing year. NMFS will continue to use retention limits, 
RFDs, and other available management tools to manage the BFT fisheries, 
within the available BFT quota and established subquotas. In recent 
years, because the rate of landings is typically slow in early June, 
NMFS has regularly set the daily retention limit for the beginning of 
the June through August period at three fish, following consideration 
of the relevant criteria provided under Sec.  635.27(a)(8), including 
supporting scientific data collection. As appropriate, NMFS then 
typically reduces the limit to the one-fish default level based on 
catch rates associated with the various authorized gear types (e.g., 
harpoon, rod and reel) to ensure fishing opportunities in all 
respective time-period subquotas and to ensure that the available quota 
is not exceeded.
    As with other mechanisms mentioned above, RFDs are an available 
effort control mechanism that can be used to extend time-period 
subquotas and provide additional inseason management flexibility 
regarding quota use and distribution and season length. Unlike other 
mechanisms, in the current regulations, RFDs may only be used to assist 
with the management of the BFT General category fishery (i.e., permit 
categories that fish against the General category quota). NMFS is not 
considering the use of limited entry for the General category fishery 
at this time, although NMFS has used limited entry in other BFT 
fisheries, such as the pelagic longline fishery. Throughout the season, 
NMFS monitors landings and catch rates and will close the fishery or 
modify retention limits as appropriate to ensure the quotas are not 
exceeded. NMFS establishes the price of the permits based on the costs 
to administer the issuance of the permits; the price of the permits is 
not used as a means to limit or reduce entry to the fishery. NMFS will 
continue to monitor and evaluate the effectiveness of all these 
management measures in the context of current conditions to determine 
whether other actions are necessary.
    Comment 7: NMFS received comments noting issues with dealer 
practices, particularly regarding sale of poor quality BFT, and 
requesting that NMFS not resume use of RFDs. Several individuals noted 
that if the dealers would like better control over supply and demand 
related to state and international markets, those dealers should 
continue to limit their own purchases as was done in 2019 and 2020.
    Response: NMFS does not control or regulate the activities of 
Federal Atlantic tunas dealers regarding the quality of fish sold on 
domestic or international markets. Instead, NMFS requires that dealers 
obtain a Federal dealer permit to purchase, trade, or barter any HMS 
and abide by the regulations under both Sec.  635.4 and Sec.  635.5. As 
described in the proposed rule, NMFS received communications from 
dealers and fishermen regarding the self-imposed no (or limited) 
purchase days in 2019 and 2020. While these actions by dealers may have 
prevented an oversupply of BFT on the market and may have lengthened 
the time-period for some subquotas, because these actions were not pre-
scheduled or consistently implemented across the fishery, some General 
category and Charter/Headboat permitted fishermen experienced negative 
impacts, and opportunities may not have been equitably distributed 
among all permitted vessels. Thus, NMFS is implementing a schedule of 
RFDs to apply consistently across the fishery to ensure that the 
General category fishery is extended for a greater portion of the 
subquota time-periods. This may have positive impacts for all General 
category and Charter/Headboat (commercial) BFT fishery participants by 
allowing for more equitable distribution of opportunities.
    Comment 8: NMFS received several comments that the proposed action 
would disadvantage General category fishermen because Harpoon category 
participants can fish for and sell BFT on RFDs. One commenter suggested 
that RFDs should apply across all categories.

[[Page 43425]]

    Response: NMFS disagrees that this action disadvantages General 
category fishermen. As noted above, BFT catch rates have increased over 
recent years in the General category, shortening the time to fill 
subquotas, resulting in untimely subquota closures and unstable 
markets. NMFS believes that this rulemaking will benefit General 
category participants by spreading out fishing effort over time, which 
would extend fishing opportunities through a greater proportion of the 
subquota time-periods. Other categories (e.g., Harpoon, Purse Seine, 
Longline, and Trap) are not experiencing these issues because of the 
unique characteristics (including gear, timing, and participation) of 
those fisheries. As such, at this time, NMFS does not intend to 
implement RFDs for any other category.
    Comment 9: NMFS received a comment supporting RFDs but expressing 
concern regarding the impact of RFDs on General category fishermen 
targeting non-BFT.
    Response: General category fishermen are still allowed to fish for, 
retain, land, and sell non-BFT species on RFDs under the applicable 
General category permit restrictions and retention limits. The RFD 
prohibition only applies to General category fishermen when fishing for 
(including catch-and-release or tag-and-release fishing), possessing, 
retaining, landing, or selling BFT.
    Comment 10: NMFS received several comments requesting that RFDs be 
implemented as a pilot program for 2021 and that NMFS re-evaluate RFDs 
for future years.
    Response: Due to high landings rates in recent years and the fact 
that the fishery has continued to close earlier than desired, and based 
on the expectation that landings rates in 2021 will be similar to 
landings rates in recent years without additional measures, NMFS is 
implementing RFDs for 2021 through this final rule. While NMFS is not 
implementing this change as a pilot program, NMFS will continue to 
monitor landings rates to determine whether RFDs are necessary in 
future fishing years, and will take appropriate action when warranted.
    Comment 11: NMFS received several comments from part-time 
commercial fishermen noting that this action would have negative 
impacts on those fishermen that work other jobs full-time during the 
week and supplement their income with weekend fishing trips.
    Response: NMFS acknowledges that this action may affect part-time 
commercial fishermen who fish on the weekend. Note that NMFS manages 
the BFT fishery to allow equitable fishing opportunities for all 
participants. Therefore, as described in the proposed rule, and above 
in the response to Comment 2, NMFS developed the 2021 RFD schedule to 
allow for some commercial fishing activity each weekend by maintaining 
Sunday as an open fishing day.
    Comment 12: NMFS received several comments noting that the BFT 
stock has rebounded and is healthy, and that, therefore, this action is 
unwarranted. Additionally, some commenters noted that NMFS is overly 
restrictive to BFT fishermen in New England.
    Response: NMFS disagrees that this action is unwarranted. The 
purpose of this action, consistent with the objectives of the 2006 
Consolidated HMS FMP and its amendments and other applicable laws, is 
to set a schedule of RFDs for the 2021 fishing year as an effort 
control for the General category quota, and to extend General category 
fishing opportunities through a greater portion of the General category 
time-period subquotas than have been available in recent years. NMFS 
does not manage the General category fishery by region. Instead, these 
regulations are applicable to all General category permit holders and 
Charter/Headboat permitted vessels that fish commercially for BFT.
    Regarding the status of BFT, the western Atlantic BFT stock is 
assessed by ICCAT. Currently the stock status remains unknown, and, for 
2021, ICCAT continues to manage the stock under an interim conservation 
and management plan. In 2018, NMFS implemented a final rule that 
established the U.S. BFT quota and subquotas consistent with ICCAT 
Recommendation 17-06 (83 FR 51391, October 11, 2018). In 2020, 
following a stock assessment update, ICCAT adopted Recommendation 20-
06, which maintained the total allowable catch of 2,350 metric tons 
(mt) and the associated U.S. quota. As such, as described in Sec.  
635.27(a), the current baseline U.S. quota remains 1,247.86 mt (not 
including the 25 mt ICCAT allocated to the United States to account for 
bycatch of BFT in pelagic longline fisheries in the Northeast Distant 
Gear Restricted Area). This action helps manage the BFT fisheries 
within that available quota and the category subquotas as established 
in existing regulations.
    Comment 13: One commenter suggested that NMFS launch an outreach 
campaign to the general public regarding the importance of seafood 
consumption to improve domestic market conditions.
    Response: This comment is outside the scope of this rulemaking, 
which pertains only to RFDs. Additionally, NMFS already has an outreach 
campaign, titled ``Eat Seafood, America!,'' designed to provide 
information about sustainable seafood and the importance of seafood 
consumption. More information can be found at https://www.fisheries.noaa.gov/topic/sustainable-seafood#eat-seafood,-america!.

Changes From the Proposed Rule

    Except for changing the 2021 RFD schedule start date from July 20, 
2021, to September 3, 2021 to accommodate the time needed to fully 
consider comments and prepare this final rule, this final rule contains 
no changes from the proposed rule.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, other provisions of the Magnuson-Stevens Act, ATCA, and 
other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator 
has determined that there is good cause to waive the 30-day delay in 
the date of effectiveness for this final action. Because the fishing 
year is already underway, delaying the effectiveness of these 
regulations could undermine the purpose of this action to implement a 
RFD schedule that would help manage the fishery within the existing 
General category subquotas and extending the duration of the fishery 
throughout the subquota time-periods. Waiting 30 days to make the rule 
effective increases the likelihood of the General category subquotas 
being met and exceeded, resulting in inseason closures earlier than 
desired.
    Implementing RFDs as soon as possible provides NMFS additional 
inseason management flexibility. Although the General category has a 
relatively large quota for the 2021 fishing year, the General and HMS 
Charter/Headboat permit category have the ability to harvest a large 
amount of General category quota in a short period of time, 
specifically from late July through November. Establishing RFDs during 
this time span is essential to extend fishing opportunities within each 
subquota time-period while also preventing market gluts, which, in 
recent years, have resulted in an increase in the number of BFT that 
are landed and not sold and have resulted in lower prices for the BFT 
that are sold. Additionally, establishing RFDs earlier in the fishing 
year provides better

[[Page 43426]]

business planning opportunities for Atlantic Tunas General category 
permittees and HMS Charter/Headboat owners/operators. As such, NMFS 
believes that a 30-day delay in setting RFDs would be contrary to the 
public interest.
    For the reasons described above, the Assistant Administrator finds 
good cause to make this rule effective immediately upon publication in 
the Federal Register.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this rule. The FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA, our responses to those 
comments and a summary of the analyses completed to support the action. 
The full FRFA is available from NMFS (see ADDRESSES). A summary is 
provided below.
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
agencies to state the need for and objective of, the final action. The 
objective of this final rulemaking is to set a schedule of RFDs for the 
2021 fishing year that should slow the rate of General category 
landings to extend fishing opportunities through a greater portion of 
the subquota periods (similar to past RFD schedules that set RFD 
schedules for the fishing year). Additionally, this final rule 
clarifies the regulations regarding applicability of RFDs to vessels 
permitted in the HMS Charter-Headboat category.
    Section 604(a)(2) requires that a FRFA include a summary of 
significant issues raised by public comment in response to the IRFA and 
a summary of the agency's assessment of such issues, and a statement of 
any changes made in the rule as a result of such comments. As described 
above, during the public comment period, NMFS received comments both in 
support of and opposed to resuming RFDs. No comments specifically 
referenced the IRFA, although some comments raised a variety of 
economic concerns including whether RFDs would affect the market (see 
comments 1 and 7), whether RFDs would affect some parts of the fishery 
more than others (see comments 8 and 11), and whether RFDs would 
negatively affect tournaments (see comments 4 and 5). NMFS' responses 
to those comments are summarized above. After careful consideration of 
all the comments received, except for changing the start date of the 
first RFD to account for the date of publication of this final rule, no 
other changes were made to the proposed rule.
    Section 604(a)(3) of the RFA requires NMFS to respond to any 
comments filed by the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) in response to the proposed rule and provide a 
detailed statement of any change made to the proposed rule as a result 
of the comments. NMFS did not receive any comments from the Chief 
Counsel for Advocacy of the SBA on the proposed rule.
    Section 604(a)(4) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
NMFS established a small business size standard of $11 million in 
annual gross receipts for all businesses in the commercial fishing 
industry (NAICS 11411) for RFA compliance purposes (50 CFR 200.2). The 
Small Business Administration (SBA) has established size standards for 
all other major industry sectors in the United States, including the 
scenic and sightseeing transportation (water) sector (NAICS code 
487210), which includes for-hire (charter/party boat) fishing entities. 
The SBA has defined a small entity under the scenic and sightseeing 
transportation (water) sector as one with average annual receipts 
(revenue) of less than $8.0 million. Therefore, NMFS considers all HMS 
permit holders, both commercial and for-hire, to be small entities 
because they had average annual receipts of less than their respective 
sector's standard of $11 million and $8 million. The 2019 total ex-
vessel annual revenue for the BFT fishery was $9.8 million. Since a 
small business is defined as having annual receipts not in excess of 
$11.0 million, each individual BFT fishing entity would fall within the 
small business definition. Thus, all of the entities affected by this 
rule are considered to be small entities for the purposes of the RFA. 
The numbers of relevant annual Atlantic Tunas or Atlantic HMS permits 
as of October 2020 are as follows: 2,645 General category permit 
holders and 3,839 HMS Charter/Headboat permit holders, of which 1,681 
hold HMS Charter/Headboat permits with a commercial sale endorsement.
    Section 604(a)(5) of the RFA requires agencies to describe any new 
reporting, record-keeping, and other compliance requirements. This 
final rule does not contain any new collection of information, 
reporting, or record-keeping requirements. This final rule would set a 
schedule of RFDs for 2021 as an effort control for the General category 
quota and would clarify existing regulatory text about the 
applicability of RFDs to HMS Charter/Headboat permitted vessels.
    Section 604(a)(6) of the RFA requires agencies in the FRFA to 
describe any steps taken to minimize the significant economic impact on 
small entities consistent with the stated objectives of applicable 
statutes.
    This final rule does not change the U.S. Atlantic BFT quotas or 
implement any new management measures not previously considered under 
the 2006 Consolidated HMS FMP and its amendments. This final rule will 
instead resume the use of RFDs, set a schedule of RFDs for 2021, 
clarify existing regulatory text about the applicability of RFDs to HMS 
Charter/Headboat permitted vessels, and make a minor change to correct 
two permit title references in a section of the regulations. Under the 
regulations, when a General category time-period subquota is reached or 
projected to be reached, NMFS closes the General category fishery. 
Retaining, possessing, or landing BFT under that quota category is 
prohibited on and after the effective date and time of a closure notice 
for that category, for the remainder of the fishing year, until the 
opening of the subsequent quota period or until such date as specified. 
In recent years, these closures, if needed, have generally occurred 
toward the end of a particular subquota time-period. According to 
communications with dealers and fishermen, several of the high-volume 
HMS Atlantic tunas dealers in 2019 and 2020 were limiting their 
purchases of BFT and buying no or very few BFT (such as harpooned fish 
only) on certain days during the beginning portion of the June through 
August subquota time-period in order to extend the available quota 
until later in the subperiod given market considerations. However, 
while these actions may have prevented large numbers of BFT from 
entering the market at the same time and may have lengthened the time 
before any particular subquota was closed, because these actions were 
not pre-scheduled or consistently implemented across the fishery, some 
General category and Charter/Headboat permitted fishermen especially 
those who could not find buyers for their BFT--experienced negative 
impacts. As a result, a number of BFT that normally would have been 
sold were not, and opportunities may not have been equitably 
distributed among all permitted vessels. Table 1 shows the number and 
total metric tons (mt) of BFT that were landed but not sold by 
fishermen fishing under the General category quota for 2017 through 
2020. The number and weight of unsold BFT has been increasing since 
2017 and

[[Page 43427]]

increased substantially (from 20 to 173 BFT and 3.8 to 31.4 mt) between 
2019 and 2020.

 Table 1--The Number (Count) and Weight (mt) of BFT That Were Landed But
             Unsold by General Category Participants by Year
------------------------------------------------------------------------
                                                                  Weight
                         Year                            Count     (mt)
------------------------------------------------------------------------
2017..................................................        0        0
2018..................................................       14      2.6
2019..................................................       20      3.8
2020..................................................      173     31.4
                                                       -----------------
  Total...............................................      207     37.8
------------------------------------------------------------------------

    In addition to reviewing the data regarding the amount of unsold 
BFT, NMFS also reviewed the average ex-vessel price. Table 2 shows the 
average ex-vessel price per pound of BFT during each General category 
subquota time-period for the years 2017 through 2020. On an annual 
basis, the ex-vessel price tends to be lower for the June through 
August subquota time-period, with an average (2017 through 2020) price 
of $6.04, and increases over the summer and fall period ($6.30 for 
September period and $6.49 for the October through November period). 
NMFS understands that several factors influenced dealers' decisions to 
not purchase BFT in 2019 (e.g., fish conditions, daily retention 
limits, and market conditions) and that in 2020, the worsening of 
global market conditions was an additional factor impacting the number 
of BFT unsold. These conditions generally occurred in June through 
August 2019, and were repeated in June through August 2020, with 
conditions and prices improving by the fall. However, in 2020, the 
average price per pound was lower for the June through December 
subquota time-periods than in any of the three previous years.

         Table 2--Average Ex-Vessel Price per Pound ($) of BFT by General Category Subquota Time-Period
                                                   [2017-2020]
----------------------------------------------------------------------------------------------------------------
                                                                       Subquota time-period
                                                ----------------------------------------------------------------
                      Year                         January        June                    October
                                                   through      through     September     through      December
                                                    March        August                   November
----------------------------------------------------------------------------------------------------------------
2017...........................................        $7.37        $6.72        $7.08        $7.56        $9.83
2018...........................................         7.43         6.92         6.55         7.58         9.56
2019...........................................         6.06         5.61         6.36         5.53        12.25
2020...........................................         6.13         4.91         5.21         5.30         5.76
                                                ----------------------------------------------------------------
    2017 through 2020 average..................         6.75         6.04         6.30         6.49         9.35
----------------------------------------------------------------------------------------------------------------

    To help address these issues, NMFS is establishing a schedule of 
RFDs for the 2021 fishing year that will regulate specific days on 
which fishing and sales will not occur. Specifically, the schedule 
allows for two-consecutive-day periods twice each week for BFT products 
to move through the market while also allowing some commercial fishing 
activity to occur each weekend (i.e., Sundays), thus providing 
opportunities for participants who may only fish on the weekend. 
Because this schedule of RFDs will apply to all participants equally, 
NMFS anticipates that this schedule will extend fishing opportunities 
through a greater proportion of the subquota time-periods in which they 
apply by spreading fishing effort out over time. Furthermore, to the 
extent that the ex-vessel revenue for a BFT sold by a General or HMS 
Charter/Headboat permitted vessel (with a commercial endorsement) may 
be higher when a lower volume of domestically-caught BFT is on the 
market at one time, the use of RFDs may result in some increase in BFT 
price, and the revenue generated by the General category subquotas 
could increase. Thus, although NMFS anticipates that the same overall 
amount of the General category quota would be landed and the same 
amount of BFT would be landed per vessel, there may be some positive 
impacts to the General category and Charter/Headboat (commercial) BFT 
fishery. Using RFDs may more equitably distribute fishing opportunities 
for longer durations within the subquota time-periods. However, the RFD 
schedule may have a negative impact to some General category fishermen 
who might only be able to fish on weekends, as Saturdays would be RFDs 
through November 30, 2021. To mitigate the loss of fishing days, NMFS 
is allowing fishing opportunities to occur on Sundays.
    Thus, if NMFS does not implement a schedule of RFDs, as in this 
final rule, it is possible that the trends of increasing numbers of 
unsold BFT (Table 1) and decreasing ex-vessel prices (Table 2) would 
continue. If these trends continue, many participants could continue to 
experience negative economic impacts.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rule. As part of 
this rulemaking process, NMFS has prepared a booklet summarizing 
fishery information and regulations for Atlantic BFT General category 
RFDs for the 2021 fishing year. That booklet notice serves as the small 
entity compliance guide. Copies of the compliance guide are available 
from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Statistics, 
Treaties.

    Dated: July 30, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 635 is amended 
as follows:

[[Page 43428]]

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for part 635 continues to read as follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.


0
2. In Sec.  635.2, revise the definition of ``Restricted-fishing day 
(RFD)'' to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Restricted-fishing day (RFD) is a day, beginning at 0000 hours and 
ending at 2400 hours local time, during which a person aboard a vessel 
issued:
    (1) An Atlantic Tunas General category permit may not fish for, 
possess, retain, land, or sell a BFT; and
    (2) A Charter/Headboat permit with a commercial endorsement may not 
fish commercially for BFT under the General category rules, but may 
fish for, possess, retain, or land BFT under the Angling category 
restrictions and retention limits.
* * * * *

0
3. In Sec.  635.23, revise paragraphs (a)(1) and (3) and (c)(1) through 
(3) and add paragraph (c)(4) to read as follows:


Sec.  635.23  Retention limits for bluefin tuna.

* * * * *
    (a) * * * (1) No person aboard a vessel that has an Atlantic Tunas 
General category permit may possess, retain, land, or sell a BFT in the 
school, large school, or small medium size class.
* * * * *
    (3) Regardless of the length of a trip, no more than a single day's 
retention limit of large medium or giant BFT may be possessed or 
retained aboard a vessel that has an Atlantic Tunas General category 
permit. On days other than RFDs, when the General category is open, no 
person aboard such vessel may continue to fish, and the vessel must 
immediately proceed to port, once the applicable limit for large medium 
or giant BFT is retained.
* * * * *
    (c) * * *
    (1) When fishing in the Gulf of Mexico, the restrictions and 
retention limits applicable to the Angling category specified in 
paragraph (b)(1) of this section apply.
    (2) When fishing other than in the Gulf of Mexico when the fishery 
for the General category is closed or on an RFD, the restrictions and 
retention limits applicable to the Angling category specified in 
paragraphs (b)(1) through (b)(3) of this section apply.
    (3) When fishing other than in the Gulf of Mexico when the General 
category fishery is open and not on an RFD, a person aboard a vessel 
that has been issued an HMS Charter/Headboat permit with a commercial 
sale endorsement may fish under either the General category 
restrictions and retention limits as specified in paragraphs (a)(1) 
through (3) of this section or the Angling category restrictions and 
retention limits as specified in paragraphs (b)(1) through (3) of this 
section. The size category of the first BFT retained will determine 
whether the General category or Angling category restrictions and 
retention limits apply to the vessel that day.
    (4) When fishing other than in the Gulf of Mexico when the General 
category fishery is open and not on an RFD, a person aboard a vessel 
that has been issued an HMS Charter/Headboat permit without a 
commercial sale endorsement permit may only fish for, possess, retain, 
or land BFT under the Angling category restrictions and retention 
limits as specified in paragraphs (b)(1) through (3) of this section.
* * * * *
[FR Doc. 2021-16685 Filed 8-6-21; 8:45 am]
BILLING CODE 3510-22-P