[Federal Register Volume 87, Number 105 (Wednesday, June 1, 2022)]
[Rules and Regulations]
[Pages 33056-33063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11730]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 220524-0121]
RIN 0648-BK99


Atlantic Highly Migratory Species (HMS); Atlantic Tunas General 
Category Restricted-Fishing Days (RFDs)

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

ACTION: Final rule.

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SUMMARY: This final rule sets Atlantic bluefin tuna (BFT) General 
category restricted-fishing days (RFDs) for all Tuesdays, Fridays, and 
Saturdays during the months of July through November 2022. On an RFD, 
Atlantic Tunas General category permitted vessels may not fish for 
(including catch-and-release or tag-and-release fishing), possess, 
retain, land, or sell bluefin tuna (BFT). On an RFD, HMS Charter/
Headboat permitted vessels with a commercial sale endorsement also are 
subject to these restrictions to preclude fishing commercially for BFT 
under the General category restrictions and retention limits, but such 
vessels may still fish for, possess, retain, or land BFT when fishing 
recreationally under

[[Page 33057]]

applicable HMS Angling category rules. RFDs are designed, in part, to 
slow the rate of landings and extend fishing opportunities for General 
category permit holders through a greater portion of the subquota 
periods. NMFS may waive previously scheduled RFDs under certain 
circumstances, but will not modify the previously scheduled RFDs during 
the fishing year in other ways (such as changing an RFD from one date 
to another, or adding RFDs).

DATES: This final rule is effective on July 1, 2022, through November 
30, 2022.

ADDRESSES: Copies of this final rule and supporting documents are 
available from the HMS Management Division website at 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] 
or Carrie Soltanoff, [email protected], at 301-427-8503.

SUPPLEMENTARY INFORMATION: Atlantic HMS fisheries, including BFT 
fisheries, are managed under the authority of the Atlantic Tunas 
Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 
U.S.C. 1801 et seq.). The 2006 Consolidated Atlantic HMS Fishery 
Management Plan (2006 Consolidated HMS FMP) and its amendments are 
implemented by regulations at 50 CFR part 635. Section 635.27 divides 
the U.S. BFT quota, recommended by the International Commission for the 
Conservation of Atlantic Tunas (ICCAT) and as implemented by the United 
States, among the various domestic fishing categories per the 
allocations established in the 2006 Consolidated HMS FMP and its 
amendments. Section 635.23 specifies the retention limit provisions for 
Atlantic Tunas General category permitted vessels and HMS Charter/
Headboat permitted vessels, including regarding RFDs.
    Specific information regarding RFDs, request for comments, and the 
current U.S. quota and General category subquotas, was provided in the 
preamble to the proposed rule (87 FR 12643, March 7, 2022) and is not 
repeated here.
    As described in the proposed rule, NMFS is undertaking this 
rulemaking to address and avoid repetition of certain issues that 
affected the General category BFT fishery in 2020 and earlier and could 
recur without additional action. Those issues include the shortened 
time to fish under the General category subquotas that occurs when the 
quota is filled quickly, increasing numbers of BFT that are landed but 
not sold to dealers because of market gluts, and the resulting 
decreased price of BFT. Because the use of RFDs in 2021 succeeded in 
extending fishing opportunities through a greater portion of the 
relevant subquota periods and the fishing season overall, consistent 
with management objectives for the fishery, NMFS proposed an RFD 
schedule for the 2022 fishing year.
    The comment period for the proposed rule closed on April 6, 2022. 
NMFS received 19 written comments, including comments from commercial 
and recreational fishermen, Atlantic tuna dealers, and the general 
public, as well as oral comments at a public hearing held by webinar. 
The comments received, and responses to those comments, are summarized 
below in the Response to Comments section.
    After considering public comments on the proposed rule in light of 
the management goals of this action, NMFS is finalizing the 2022 RFD 
schedule as proposed. As described below, no changes are made from the 
proposed rule. Implementing this RFD schedule, with the ability to 
waive scheduled RFDs, should slow the rate of landings and provide 
available quota throughout a longer duration of the General category 
subquota periods while providing reasonable fishing opportunities, 
including some fishing tournament opportunities, for all General 
category participants.
    Specifically, NMFS sets RFDs for the 2022 fishing year on the 
following days: All Tuesdays, Fridays, and Saturdays from July 1 
through November 30, 2022. On an RFD, vessels permitted in the Atlantic 
Tunas General category are prohibited from fishing for (including 
catch-and-release and tag-and-release fishing), possessing, retaining, 
landing, or selling BFT (Sec.  635.23(a)(2)). RFDs also apply to HMS 
Charter/Headboat permitted vessels to preclude fishing commercially 
under General category restrictions and retention limits on those days, 
but do not preclude such vessels from recreational fishing activity 
under applicable Angling category regulations and size classes, and 
they may participate in including catch-and-release and tag-and-release 
fishing (Sec.  635.23(c)(3)).
    NMFS may waive previously scheduled RFDs under certain 
circumstances. Consistent with Sec.  635.23(a)(4), NMFS may waive an 
RFD by adjusting the daily BFT retention limit from zero up to five on 
specified RFDs, after considering the inseason adjustment determination 
criteria at Sec.  635.27(a)(8). Considerations include, among other 
things, review of dealer reports, daily landing trends, and the 
availability of BFT on fishing grounds. NMFS will announce any such 
waiver by filing a retention limit adjustment with the Office of the 
Federal Register for publication. Such adjustments will be effective no 
less than 3 calendar days after the date of filing for public 
inspection with the Office of the Federal Register. NMFS also may waive 
previously designated RFDs effective upon closure of the General 
category fishery so that persons aboard vessels permitted in the 
General category may conduct only catch-and-release or tag-and-release 
fishing for BFT under Sec.  635.26(a). NMFS will not modify the 
previously scheduled RFDs during the fishing year in other ways (such 
as changing an RFD from one date to another, or adding RFDs) other than 
waiving designated RFDs based on the circumstances described above.

Response to Comments

    All written comments can be found at www.regulations.gov by 
searching for NOAA-NMFS-2022-0025. NMFS received approximately 19 
comments orally at public hearings and in writing from General category 
fishermen, charter/headboat fishermen, tournament operators, and others 
from the public. Commenters both supported and opposed General category 
RFDs for the 2022 fishing year. Below, NMFS summarizes and responds to 
all comments made specifically on the proposed rule during the comment 
period.
    Comment 1: Most commenters supporting RFDs noted that RFDs should 
lengthen the General category season within the subquota periods and 
the season overall.
    Response: NMFS agrees that RFDs should lengthen the General 
category season within the subquota periods and the season overall. The 
primary objective of this action is to slow the harvest rate of BFT in 
order to extend the period of time that the fishery remains open, 
allowing fishing opportunities later in the season.
    Comment 2: Some commenters supporting RFDs noted that there may be 
more reliance on domestic markets this year given that global markets 
and economies are still stabilizing, as well as due to the anticipated 
increase in shipping costs due to fuel prices. Other commenters 
expressed that RFDs were unnecessary given the impacts of COVID-19 on 
the recovery of domestic and international markets.
    Response: NMFS considered economic factors and past and present

[[Page 33058]]

market conditions and economies in the proposed rule. NMFS acknowledges 
the unique global impacts of COVID-19 and the challenges that could be 
experienced as domestic and international markets recover and given 
higher fuel prices; however, NMFS observed the issues that contributed 
to the need for this action for several years, and those issues were 
exacerbated in both 2019 and 2020. Specifically, over the past several 
years, landings have been highest from mid-August through November, 
contributing to derby-like conditions and market gluts, shortening the 
time it takes to fill relevant subquotas, and resulting in inseason 
closures earlier than desired. In 2021, NMFS established a schedule of 
RFDs from September through November. Because the use of RFDs in 2021 
succeeded in extending fishing opportunities through a greater portion 
of the relevant subquota periods and the fishing season overall, 
consistent with management objectives for the fishery, NMFS proposed an 
RFD schedule for the 2022 fishing year.
    Comment 3: Some commenters expressed concern that the proposed rule 
seemed to be economic in nature and would negatively impact General 
category participants.
    Response: As discussed in response to Comment 2, above, NMFS 
considered economic factors in developing the proposed rule for this 
action, but the primary purpose of the action is not solely economic in 
nature. Rather, the rule is designed to lengthen the General category 
season within the subquota periods and the season overall. Considering 
all relevant information, NMFS concluded that RFDs should help prevent 
large numbers of BFT from entering the market at the same time, which 
could potentially alleviate some negative economic impacts experienced 
by General category and Charter/Headboat permitted fishermen who could 
not find buyers for their BFT (as did the 2021 RFD rule).
    NMFS acknowledges the unique global impacts of COVID-19 and the 
challenges that could be experienced due to rising fuel prices and 
recovering domestic and international markets. The issues that 
contributed to the need for this action were occurring for several 
years, however, not only as a result of COVID-19 market effects, 
although those issues were exacerbated in both 2019 and 2020. 
Specifically, over the past several years, landings have been highest 
from mid-August through November, contributing to derby-like conditions 
and market gluts, shortening the time it takes to fill relevant 
subquotas, and resulting in inseason closures earlier than desired. In 
2021, NMFS established a schedule of RFDs from September through 
November. Because the use of RFDs in 2021 succeeded in extending 
fishing opportunities through a greater portion of the relevant 
subquota periods and the fishing season overall, consistent with 
management objectives for the fishery, NMFS proposed an RFD schedule 
for the 2022 fishing year.
    Comment 4: Some commenters opposing RFDs expressed concerns that 
RFDs could result in safety-at-sea concerns and could have negative 
impacts given fuel prices.
    Response: Overall, NMFS believes that by spreading out fishing 
effort over a longer period of time, safety-at-sea issues should 
decrease, as the conditions that encourage derby-like behavior would be 
diminished. NMFS recognizes that the weather is unpredictable, 
particularly in the second half of October and early November, and that 
poor weather may limit participation without the need for additional 
RFDs during this part of the season. Should BFT landings and catch 
rates merit waiving RFDs, NMFS could adjust the daily retention limit 
on waived days with a minimum 3-day notification to fishermen, by 
filing such an adjustment in the Federal Register, under Sec.  
635.23(a)(4).
    Comment 5: NMFS received comments both supporting the proposed 
Tuesday, Friday, and Saturday schedule of RFDs, and opposing the 
proposed schedule. Some commenters suggested modifications to the 
proposed schedule, including implementing RFDs starting June 1, 2022, 
and/or avoiding weekends. One commenter objected to the proposed RFD 
schedule while also suggesting a weekly RFD schedule of Tuesday, 
Friday, and Sunday. Some commenters supported the proposed schedule of 
RFDs starting on July 1, 2022.
    Response: NMFS' proposed schedule of RFDs was based on a review of 
average daily catch rate data for recent years, a review of past years' 
RFD schedules (including the 2021 RFD schedule) and how they worked to 
extend the use of the General category quota, and input from General 
category participants, Atlantic tuna dealers, and members of the HMS 
Advisory Panel. The Tuesday, Friday, and Saturday RFD schedule allows 
for two-consecutive-day periods twice each week (Sunday-Monday; 
Wednesday-Thursday) for General category and Charter/Headboat permitted 
vessels with a commercial sale endorsement to fish for and sell BFT. 
NMFS believes that two-consecutive-day periods twice each week would 
allow BFT products to move through the market while also allowing some 
commercial fishing activity to occur each weekend (i.e., Sundays). NMFS 
acknowledges that Sunday (similar to Friday and Saturday) is a high 
catch and landing day. However, NMFS believes that setting Sunday as an 
RFD instead of Saturday would not meet the objective of this rulemaking 
as it would not allow adequate time for fish products to move through 
the market and would continue the increasing trend of BFT landed by 
General category participants that could not be sold, as occurred from 
2018 through 2020.
    NMFS disagrees that RFDs should start on June 1, 2022, as catch and 
landings rates are generally slow at the beginning of the June. NMFS is 
setting RFDs starting on July 1, 2022, as proposed, when catch and 
landing rates begin to substantially increase, resulting in General 
category subquotas being met and closures of applicable General 
category subquota periods. NMFS believes that this schedule of RFDs 
should increase the likelihood of pacing General category landings to 
extend fishing opportunities through a greater portion of the subquota 
periods (similar to the 2021 RFD schedule).
    Comment 6: NMFS received comments, from both those in support of 
and opposed to RFDs, regarding the potential negative impacts of RFDs 
on BFT fishing tournaments. These commenters noted the economic 
importance of fishing tournaments on local economies. One commenter 
noted the negative impact that RFDs would have on fishing tournaments 
but suggested that NMFS maintain the proposed RFD schedule, i.e., 
Tuesday, Friday, and Saturday RFDs beginning July 1, 2022, noting that 
many fishing tournaments have established their dates based around the 
proposed schedule. One commenter noted that RFDs did not negatively 
impact their fishing tournament in 2021.
    Response: NMFS acknowledges that RFDs that occur on a tournament 
date may affect BFT fishing at those tournaments, since some tournament 
participants are General category permit holders and are prohibited 
from fishing for BFT on RFDs. However, on an RFD, General category 
permit holders may still participate in non-BFT fishing during the 
tournament, and may land sharks, swordfish, billfish, and/or bigeye, 
albacore, yellowfin, and skipjack tunas recreationally as otherwise 
allowed. Additionally, on an RFD, Charter/Headboat-permitted vessels 
may participate recreationally in HMS fishing tournaments, including 
for BFT,

[[Page 33059]]

under the applicable Angling category restrictions and size class 
limits. Under the current regulations, tournament operators are 
required to register their tournament with NMFS at least four weeks 
prior to the start of the tournament. Given past scheduled tournaments 
from July through November and the tournaments that have registered 
already for this year, NMFS anticipates or has been notified of several 
fishing tournaments that will likely include BFT. Should a tournament 
change its dates of operation, NMFS encourages tournament operators to 
contact NMFS to update the dates for which their tournament is 
registered. NMFS does not plan to waive RFDs specifically and solely to 
accommodate tournaments as doing so could eliminate the benefits of 
RFDs by allowing General category and Charter/Headboat permitted 
vessels with a commercial sale endorsement the opportunity to land and 
sell commercial size BFT on those scheduled RFD dates. NMFS will 
closely monitor BFT landings and catch rates and, based on that 
information, NMFS will consider waiving RFDs if BFT landings and 
catches indicate that such action is warranted, after taking into 
consideration the inseason adjustment determination criteria at Sec.  
635.27(a)(8). This would include, among other things, review of dealer 
reports, daily landing trends, and the availability of BFT on fishing 
grounds. NMFS could waive an RFD by adjusting the daily retention 
limits with a minimum 3-day notification to fishermen, by filing such 
an adjustment in the Federal Register, under Sec.  635.23(a)(4).
    Comment 7: NMFS received comments expressing concern that 
increasing the General category retention limit from the default of one 
fish to three fish to begin the June through August subquota period is 
counterproductive to the goal of setting RFDs. Some commenters 
requested the use of mechanisms other than RFDs to extend the fishery, 
such as maintaining the default retention limit throughout the season. 
One commenter suggested NMFS modify existing subquota allocations.
    Response: This action focuses on implementing RFDs, as currently 
authorized in the regulations, to slow the rate of General category 
landings, prevent early closures, and extend fishing opportunities 
through a greater portion of the General category time-period subquotas 
for the 2022 fishing year. NMFS will continue to use retention limits, 
RFDs, and other available management tools to manage the BFT fisheries, 
within the available BFT quota and established subquotas. In recent 
years, because the rate of landings and overall fishing effort in the 
General category is typically slow in early June, NMFS has regularly 
set the daily retention limit for the beginning of the June through 
August period at three fish, following consideration of the relevant 
criteria provided under Sec.  635.27(a)(8), including supporting 
scientific data collection. NMFS monitors the landings closely, and, as 
appropriate, NMFS then typically reduces the limit to the one-fish 
default level to ensure fishing opportunities in all respective time-
period subquotas and to ensure that the available quota is not 
exceeded. Any change in the retention limit considers the relevant 
criteria and includes consideration of the catch rates associated with 
the various authorized gear types (e.g., harpoon, rod and reel).
    As with other mechanisms mentioned above, RFDs are an available 
effort control mechanism that can be used to extend time-period 
subquotas and provide additional inseason management flexibility 
regarding quota use and distribution and season length. Unlike other 
mechanisms, in the current regulations, RFDs may only be used to assist 
with the management of the BFT General category fishery (i.e., permit 
categories that fish against the General category quota). Throughout 
the season, NMFS monitors landings and catch rates and will close the 
fishery or modify retention limits as appropriate to ensure the quotas 
are not exceeded. NMFS will continue to monitor and evaluate the 
effectiveness of all these management measures in the context of 
current conditions to determine whether other actions are necessary.
    NMFS is not considering modifications of the General category 
subquotas in this action. The proposed rule for Amendment 13 to the 
2006 Consolidated HMS FMP (86 FR 27686, May 21, 2021) proposed 
modifications to the BFT category quotas which were further detailed in 
the Amendment 13 Final Environmental Impact Statement published on May 
13, 2022 (87 FR 29310). The final rule for Amendment 13 has not been 
completed, and the BFT quotas and subquotas therefore are not affected 
by Amendment 13 at this time. NMFS also recently published a final rule 
which would increase the U.S. baseline BFT quota to reflect a binding 
2021 ICCAT binding and to adjust the subquotas accordingly.
    Comment 8: NMFS received comments noting issues with dealer 
practices and requesting NMFS not to use RFDs. Several individuals 
noted that dealers could limit their own purchases in order to control 
supply and demand related to domestic and international markets.
    Response: NMFS requires that dealers obtain a Federal dealer permit 
to purchase, trade, or barter any HMS and abide by the regulations 
under both Sec.  635.4 and Sec.  635.5. As described in the proposed 
rule, NMFS received communications from dealers and fishermen regarding 
the self-imposed no-purchase (or limited-purchase) days in 2019 and 
2020. While these actions by dealers may have prevented an oversupply 
of BFT on the market and may have lengthened the duration of some 
subquota periods, these actions were not pre-scheduled or consistently 
implemented across the fishery. Some General category and Charter/
Headboat permitted fishermen may have experienced negative impacts in 
this context, and opportunities may not have been equitably distributed 
among all permitted vessels. Thus, NMFS is finalizing a schedule of 
RFDs for 2022.
    Comment 9: NMFS received some comments noting that the BFT stock 
has rebounded and is healthy, and that, therefore, this action is not 
necessary. Additionally, one commenter noted that NMFS is overly 
restrictive to BFT fishermen in New England.
    Response: NMFS disagrees that this action is ``unwarranted.'' The 
purpose of this action, consistent with the objectives of the 2006 
Consolidated HMS FMP and its amendments and other applicable laws, is 
to set a schedule of RFDs for the 2022 fishing year as an effort 
control for the General category quota, and to extend General category 
fishing opportunities through a greater portion of the General category 
time-period subquotas than have been available in recent years, as 
intended when the time-period subquotas were adopted. NMFS does not 
manage the General category fishery by region. Instead, these 
regulations are applicable to all General category permit holders and 
Charter/Headboat permitted vessels that fish commercially for BFT.

[[Page 33060]]

    Regarding the status of BFT, the western Atlantic BFT stock is 
assessed by ICCAT, and the most recent assessment was conducted in 
2021. Domestically, following the 2017 stock assessment, NMFS 
determined that the overfished status for BFT is unknown and that the 
stock is not subject to overfishing, and this status remains in effect. 
NMFS recently published a final rule that increased the baseline U.S. 
BFT quota to 1,316.14 mt (not including the 25 mt ICCAT allocated to 
the United States to account for bycatch of BFT in pelagic longline 
fisheries in the Northeast Distant Gear Restricted Area), as codified 
at Sec.  635.27(a), consistent with Recommendation 21-07 adopted by 
ICCAT at the November 2021 annual meeting. Further information on the 
BFT stock assessment and stock status can be found in that final rule 
and associated Environmental Assessment. This action helps manage the 
BFT fisheries within that available U.S. quota and the category 
subquotas as established in existing regulations.
    Comment 10: NMFS received comments supporting the future use of 
RFDs for the January through March subquota period noting that RFDs 
would likely result in better management of the annual quota and avoid 
quota exceedance during this period. One commenter expressed concerns 
for setting RFDs during the January through March subquota period 
noting unpredictable weather and the potential undesirable impacts of 
extending the length of time to reach the subquota if the fishery 
starts in mid-February. Additionally, NMFS received comments opposing 
the setting of three consecutive days of RFDs or setting RFDs for the 
December subquota period.
    Response: Although NMFS requested comment on the potential setting 
of RFDs for the January through March subquota period, NMFS is not 
setting RFDs for the January through March 2023 subquota period through 
this action because BFT landings and catch rates do not indicate RFDs 
are warranted at this time. NMFS will continue to monitor landings 
during this subquota period and consider the input received during the 
public comment period for this action to determine whether RFDs are 
necessary for the January through March subquota period. If NMFS 
believes RFDs are necessary for the January through March subquota 
period, NMFS will publish a proposed schedule of RFDs in a future 
rulemaking.
    Comment 11: One commenter requested that NMFS establish RFDs for 
fishermen fishing in the Gulf of Mexico noting that the Gulf of Mexico 
is a spawning area for BFT.
    Response: NMFS disagrees that RFDs should be established 
specifically for the Gulf of Mexico. Under the current regulations, 
commercial fishermen, including all General category permit holders and 
Charter/Headboat permitted vessels that fish commercially for BFT, may 
not target BFT at any time in the Gulf of Mexico, a rule that was 
established recognizing that the Gulf of Mexico is recognized as the 
primary spawning grounds for bluefin tuna. HMS Charter/Headboat permit 
holders fishing recreationally may retain one ``trophy'' BFT (>73'') 
per vessel per year from the Gulf of Mexico, if it is caught 
incidentally while fishing for other species, provided the limited 
``trophy'' category subquota in the Gulf of Mexico is available at the 
time of harvest and the season has not closed. RFDs do not apply to 
recreational catch because RFDs only apply to General category permit 
holders and Charter/Headboat permitted vessels that fish commercially 
for BFT.
    Comment 9: NMFS received a comment expressing concern that RFDs 
would not reduce the amount of fishing gear in the ocean.
    Response: Addressing discarded gear is outside of the scope of this 
action.

Classification

    NMFS is issuing this rule pursuant to 305(d) of the Magnuson-
Stevens Act. The NMFS Assistant Administrator has determined that this 
final rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, other provisions of the Magnuson-Stevens Act, ATCA, and 
other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this rule. The FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA, our responses to those 
comments and a summary of the analyses completed to support the action. 
The FRFA is provided below.
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
agencies to state the need for and objective of the final action. The 
objective of this final rulemaking is to set a schedule of RFDs for the 
2022 fishing year that should slow the rate of General category 
landings to extend fishing opportunities through a greater portion of 
the subquota periods (similar to the 2021 RFD schedule).
    Section 604(a)(2) of the RFA requires a summary of significant 
issues raised by the public in response to the IRFA, a summary of the 
agency's assessment of such issues, and a statement of any changes made 
as a result of the comments. As described above, during the public 
comment period, NMFS received comments both in support of and opposed 
to establishing RFDs for 2022. No comments specifically referenced the 
IRFA, although some comments raised a variety of economic concerns 
including whether RFDs would affect the market (see comments 2, 3, 5, 
and 8), whether RFDs would affect some parts of the fishery more than 
others (see comment 9), and whether RFDs would negatively affect 
tournaments (see comment 6). NMFS' responses to those comments are 
summarized above. After careful consideration of all the comments 
received, no changes were made to the proposed rule.
    Section 604(a)(3) of the RFA requires the response of the agency to 
any comments filed by the Chief Counsel for Advocacy of the Small 
Business Administration (SBA) in response to the proposed rule, and a 
detailed statement of any change made to the proposed rule in the final 
rule as a result of the SBA comments. NMFS did not receive any comments 
from the Chief Counsel for Advocacy of the SBA on the proposed rule.
    Section 604(a)(4) of the RFA requires agencies to provide 
descriptions of, and where feasible, an estimate of the number of small 
entities to which the rule would apply. NMFS established a small 
business size standard of $11 million in annual gross receipts for all 
businesses in the commercial fishing industry (NAICS 11411) for RFA 
compliance purposes. NMFS established a small business size standard of 
$11 million in annual gross receipts for all businesses in the 
commercial fishing industry (NAICS 11411) for RFA compliance purposes. 
The Small Business Administration (SBA) has established size standards 
for all other major industry sectors in the United States, including 
the scenic and sightseeing transportation (water) sector (NAICS code 
487210), which includes for-hire (charter/party boat) fishing entities. 
The SBA has defined a small entity under the scenic and sightseeing 
transportation (water) sector as one with average annual receipts 
(revenue) of less than $8.0 million. NMFS considers all HMS permit 
holders, both commercial and for-hire, to be small entities because

[[Page 33061]]

they had average annual receipts of less than their respective sector's 
standard of $11 million and $8 million. The 2020 total ex-vessel annual 
revenue for the BFT fishery was $8.4 million. Since a small business is 
defined as having annual receipts not in excess of $11.0 million, each 
individual BFT permit holder would fall within the small entity 
definition. The numbers of relevant annual Atlantic Tunas or Atlantic 
HMS permits as of October 2021 are as follows: 2,730 General category 
permit holders and 4,055 HMS Charter/Headboat permit holders, of which 
1,793 hold HMS Charter/Headboat permits with a commercial sale 
endorsement.
    Section 604(a)(5) of the RFA requires agencies to describe any new 
reporting, record-keeping, and other compliance requirements. This 
final rule does not contain any new collection of information, 
reporting, or record-keeping requirements. This final rule would set a 
schedule of RFDs for 2022 as an effort control for the General 
category.
    Section 604(a)(6) of the RFA, requires agencies to describe the 
steps the agency has taken to minimize the significant economic impact 
on small entities consistent with the stated objectives of applicable 
statutes, including a statement of the factual, policy, and legal 
reasons for selecting the alternative adopted in the final rule and why 
each one of the other significant alternatives to the rule considered 
by the agency which affect the impact on small entities was rejected.
    This final rule does not change the U.S. Atlantic BFT quotas or 
implement any new management measures not previously considered under 
the 2006 Consolidated HMS FMP and its amendments. This final rule will 
instead set a schedule of RFDs for the General category in 2022. Under 
the regulations, when a General category subquota period is reached or 
projected to be reached, NMFS closes the General category fishery. 
Retaining, possessing, or landing BFT under that quota category is 
prohibited on and after the effective date and time of a closure notice 
for that category, for the remainder of the fishing year, until the 
opening of the subsequent quota period or until such date as specified. 
In recent years, these closures, if needed, have generally occurred 
toward the end of a subquota period. According to communications with 
dealers and fishermen, several of the high-volume Atlantic tunas 
dealers in 2019 and 2020 were limiting their purchases of BFT and 
buying no or very few BFT (such as harpooned fish only) on certain days 
during the beginning portion of the June through August subquota period 
in order to extend the available quota until later in the subquota 
period given market considerations. However, while these actions may 
have prevented large numbers of BFT from entering the market at the 
same time and may have lengthened the time before any particular 
subquota period was closed, because these actions were not pre-
scheduled or consistently implemented across the fishery, there were 
negative impacts experienced by some General category and Charter/
Headboat permitted fishermen, who could not find buyers for their BFT. 
As a result, a number of BFT that normally would have been sold were 
not, and opportunities may not have been equitably distributed among 
all permitted vessels. In 2021, NMFS set pre-scheduled RFDs for the 
General category fishery on certain days (Tuesdays, Fridays, and 
Saturdays) from September through November to increase the likelihood 
of pacing General category landings to extend fishing opportunities 
through a greater portion of the subquota periods. Table 1 shows the 
number and total metric tons (mt) of BFT that were landed but not sold 
by fishermen fishing under the General category quota from 2017 through 
2021. The number and weight of unsold BFT increased from 2018 through 
2020, with a peak of unsold BFT in 2020 (161 BFT and 28.8 mt) which 
NMFS presumes is in part due to the pandemic, and substantially 
decreased in 2021 (from 161 to 14 BFT and 28.8 mt to 2.5 mt). NMFS 
believes this substantial decrease is in part due to the use of RFDs in 
2021.

   Table 1--Number (Count) and Weight (mt) of BFT Landed but Unsold by
                  General Category Participants by Year
                               [2017-2021]
------------------------------------------------------------------------
                Year                        Count         Weight  (mt)
------------------------------------------------------------------------
2017................................                 0                 0
2018................................                 8               1.4
2019................................                11               2.2
2020................................               161              28.8
2021................................                14               2.5
                                     -----------------------------------
    Total...........................               194              34.9
------------------------------------------------------------------------

    Table 2 shows the average ex-vessel price per pound of BFT during 
each General category subquota time period from 2017 through 2021. Ex-
vessel price per pound was lower for the June through August period, 
with an average (2017 through 2021) of $6.29, and increased into fall 
period, with an average of $6.98 for the October through November 
period). In 2021, the average price per pound was higher for all time 
periods compared to the average price per pound during the time periods 
in 2020. In most time periods, the 2021 average price per pound was 
also higher than the 2019 average price per pound. NMFS believes that 
this increase in average price was in part due to the use of RFDs in 
2021.

[[Page 33062]]



                             Table 2--Average Ex-Vessel Price per Pound ($) of BFT by General Category Subquota Time Period
                                                                       [2017-2021]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Subquota time period
                                                               -----------------------------------------------------------------------------------------
                             Year                                January through    June through                       October through
                                                                      March            August           September         November          December
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017..........................................................             $7.30             $6.73             $7.08             $7.58             $9.83
2018..........................................................              7.49              6.92              6.56              7.58              9.56
2019..........................................................              6.07              5.61              6.36              5.53             12.25
2020..........................................................              6.14              4.92              5.22              5.63              5.76
2021..........................................................              6.26              6.96              6.17              7.40              8.55
                                                               -----------------------------------------------------------------------------------------
    2017-2021 average.........................................              6.52              6.29              6.26              6.98              8.80
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 3 shows the number of open days during each General category 
subquota time period from 2017 through 2021. On an annual basis, the 
average number of General category open days tends to be higher earlier 
in the fishing year (i.e., 64 days for the January through March period 
and 79 days for the June through August period) and decreases as the 
season progresses into the late fall and winter seasons (i.e., 21 days 
for September period, 21 days for October through November period, and 
20 days for the December period). In 2021, the total number of open 
days was higher compared to the total number of days in 2019. NMFS set 
RFDs for the September and October through November subquota periods in 
2021. Although the number of open days for the September 2021 subquota 
period was the lowest except for 2019, the October through November 
2021 subquota period remained open for more days compared to the 
previous four years. NMFS believes that the increase in fishing days 
was in part due to RFDs.

                                          Table 3--General Category Number of Open Days by Subquota Time Period
                                                                       [2017-2021]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Subquota time period
                                             -----------------------------------------------------------------------------------------------------------
                    Year                       January through    June through                       October through
                                                    March            August           September         November          December            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017........................................                88                77                17                 5                 6               193
2018........................................                61                92                23                15                31               222
2019........................................                59                69                13                13                31               185
2020........................................                55                91                27                11                14               200
2021........................................                58                65                14                34                18               189
                                             -----------------------------------------------------------------------------------------------------------
    2017-2021 average.......................                64                79                19                16                20               198
--------------------------------------------------------------------------------------------------------------------------------------------------------

    NMFS is setting a schedule of RFDs for the 2022 fishing year that 
would specify days on which General category quota fishing and sales 
will not occur. Specifically, the schedule allows for two-consecutive-
day periods twice each week for BFT product to move through the market 
while also allowing some commercial fishing activity to occur each 
weekend (i.e., Sundays). Because this schedule of RFDs would apply to 
all participants equally, NMFS anticipates that this schedule would 
extend fishing opportunities through a greater proportion of the 
subquota periods in which they apply by spreading fishing effort out 
over time, similar to the 2021 fishing season. Further, to the extent 
that the ex-vessel revenue of a BFT sold by a General or HMS Charter/
Headboat permitted vessel (with a commercial endorsement) may be higher 
when a lower volume of domestically-caught BFT is on the market at one 
time, the use of RFDs may result in some increase in BFT price, and the 
value of the General category subquotas could increase, similar to that 
of 2021. Thus, although NMFS anticipates that the same overall amount 
of the General category quota would be landed as well as the same 
amount of BFT landed per vessel, there may be positive impacts to the 
General category and Charter/Headboat (commercial) BFT fishery because 
using RFDs may more equitably distribute opportunities across all 
permitted vessels for longer durations within the subquota periods.
    If NMFS does not implement a schedule of RFDs, as in this final 
rule, without any other changes, it is possible that the trends of 
increasing numbers of unsold BFT (Table 1) and decreasing ex-vessel 
prices (Table 2) from 2017 through 2020 could continue. Additionally, 
without RFDs in 2022, the General category could have fewer open days 
later in the fishing season when ex-vessel prices tend to be higher 
(Table 3) as observed from 2017 through 2020. If those trends were to 
continue, most active General category permit holders could experience 
negative economic impacts similar to those in 2019 and 2020 when 
dealers were limiting their purchases of BFT and buying no or very few 
BFT on certain days in order to extend the available quota.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rule. As part of 
this rulemaking process, NMFS has prepared a booklet summarizing 
fishery

[[Page 33063]]

information and regulations for Atlantic BFT General category RFDs for 
the 2022 fishing year. That booklet notice serves as the small entity 
compliance guide. Copies of the compliance guide are available from 
NMFS (see ADDRESSES).

    Dated: May 24, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2022-11730 Filed 5-31-22; 8:45 am]
BILLING CODE 3510-22-P