[Federal Register Volume 88, Number 101 (Thursday, May 25, 2023)]
[Rules and Regulations]
[Pages 33839-33845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11079]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 230518-0134]
RIN 0648-BL94


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

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

ACTION: Temporary rule.

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SUMMARY: This temporary rule sets Atlantic bluefin tuna (BFT) General 
category restricted-fishing days (RFDs) for all Tuesdays, Fridays, and 
Saturdays from July 1 through November 30, 2023. On an RFD, Atlantic 
Tunas General category permitted vessels may not fish for (including 
catch-and-release or tag-and-release fishing), possess, retain, land, 
or sell BFT. On an RFD, HMS Charter/Headboat permitted vessels with a 
commercial sale endorsement also are subject to these restrictions and 
may not fish commercially for BFT under the General category 
restrictions and retention limits, but such vessels may still fish for, 
possess, retain, or land BFT when fishing recreationally under 
applicable HMS Angling category rules. NMFS may waive previously 
scheduled RFDs under certain circumstances, but will not modify the 
previously scheduled RFDs during the fishing year in other ways (such 
as changing an RFD from one date to another or adding RFDs).

DATES: Effective July 1, 2023, through November 30, 2023.

ADDRESSES: Copies of this temporary rule and supporting documents are 
available from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species or by 
contacting Erianna Hammond at [email protected] or 301-427-8503.

FOR FURTHER INFORMATION CONTACT: Erianna Hammond, 
[email protected], or Larry Redd, Jr., [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 (88 FR 13771, March 6, 2023) and is not 
repeated here.
    As described in the proposed rule, NMFS is undertaking this 
rulemaking to address and avoid repetition of certain issues that 
affected the General category BFT fishery in previous years and could 
recur without additional action. Those issues include the shortened 
time to fish under the General category subquotas that occurs when the 
quota is filled quickly, and the increased numbers of BFT that are 
landed but not sold to dealers because of market gluts. Because the use 
of RFDs in 2022 succeeded in extending fishing opportunities through a 
greater portion of the relevant General Category time periods and the 
fishing season overall, consistent with management objectives for the 
fishery, NMFS proposed an RFD schedule for parts of the 2023 and 2024 
fishing years.
    The comment period for the proposed rule closed on April 5, 2023. 
NMFS received 43 written comments, including comments from commercial 
and recreational fishermen, Atlantic tunas dealers, and the general 
public as well as oral comments at a public hearing held by webinar. 
The comments received and responses to those comments are summarized 
below in the Response to Comments section.
    After considering public comments on the proposed rule in light of 
the management goals of this action, NMFS is finalizing an RFD schedule 
for the June through August, September, and October through November 
2023 time periods and is not finalizing an RFD schedule for the 
December 2023 or January through March 2024 time periods. Setting an 
RFD schedule for

[[Page 33840]]

July through November, with the ability to waive scheduled RFDs, should 
slow the rate of landings and provide available quota throughout a 
greater portion of the General category time periods while providing 
reasonable fishing opportunities, including some fishing tournament 
opportunities, for all General category participants.
    Specifically, NMFS sets RFDs on the following days: all Tuesdays, 
Fridays, and Saturdays from July 1 through November 30, 2023. On an 
RFD, vessels permitted in the Atlantic Tunas General category are 
prohibited from fishing for (including catch-and-release and tag-and-
release fishing), possessing, retaining, landing, or selling BFT (Sec.  
635.23(a)(2)). RFDs also apply to HMS Charter/Headboat permitted 
vessels to preclude fishing commercially under General category 
restrictions and retention limits on those days, but do not preclude 
such vessels from recreational fishing activity under applicable 
Angling category regulations and size classes, and they may participate 
in catch-and-release and tag-and-release fishing (Sec.  635.23(c)(2)).
    NMFS may waive previously scheduled RFDs under certain 
circumstances. Consistent with Sec.  635.23(a)(4), NMFS may waive an 
RFD by adjusting the daily BFT retention limit from zero up to five on 
specified RFDs, after considering the inseason adjustment determination 
criteria at Sec.  635.27(a)(7). Considerations include, among other 
things, review of dealer reports, daily landing trends, and the 
availability of BFT on fishing grounds. NMFS will announce any such 
waiver by filing a retention limit adjustment with the Office of the 
Federal Register for publication. NMFS also may waive previously 
designated RFDs effective upon closure of the General category fishery 
so that persons aboard vessels permitted in the General category may 
conduct only catch-and-release or tag-and-release fishing for BFT under 
Sec.  635.26(a). NMFS will not modify the previously scheduled RFDs 
during the fishing year in other ways (such as changing an RFD from one 
date to another, or adding RFDs) other than waiving designated RFDs 
based on the circumstances described above.

Response to Comments

    All written comments can be found at www.regulations.gov by 
searching for NOAA-NMFS-2023-0016. NMFS received 43 written comments 
from General category fishermen, Charter/Headboat fishermen, tournament 
operators, Atlantic tunas dealers, and others from the general public, 
as well as oral comments at a public hearing. Below, NMFS summarizes 
and responds to all comments made specifically on the proposed rule 
during the comment period.
    Comment 1: Most commenters supporting RFDs noted that RFDs should 
lengthen the General category season.
    Response: NMFS agrees that RFDs should lengthen the General 
category season within the General category time periods and the season 
overall. The primary objective of this action is to slow the harvest 
rate of BFT in order to extend General category fishing opportunities 
through a greater portion of the General category time periods.
    Comment 2: Some commenters opposed to RFDs expressed concern that 
the proposed rule seemed to be economic in nature and would negatively 
impact General category participants. These commenters suggested that 
NMFS no longer use RFDs as a management tool to manage the BFT 
fisheries.
    Response: While NMFS considered economic factors in developing the 
proposed rule for this action, the primary purpose of the action is not 
economic in nature. Rather, the rule is designed to extend General 
category fishing opportunities through a greater portion of the General 
category time periods. RFDs provide a pre-scheduled, consistent 
approach to slow landings across the fishery. After considering all 
relevant information, NMFS concluded that the use of RFDs is likely to 
extend the period of time that the fishery remains open resulting in 
more fishing opportunities later into General category time periods.
    Comment 3: NMFS received comments noting that the BFT stock is 
healthy and therefore, this action is unwarranted. Additionally, 
commenters suggested that NMFS negotiate for more BFT quota at ICCAT. 
Some commenters suggested that NMFS modify existing subquota 
allocations. NMFS also received some comments supporting the proposed 
rule noting this action would assist with the conservation and 
protection of bluefin tuna. One commenter noted that BFT are an 
endangered species and protection of the species should be a priority 
of the Agency.
    Response: NMFS disagrees that this action is ``unwarranted'' and 
further notes that BFT are not an endangered species. The purpose of 
this action, consistent with the objectives of the 2006 Consolidated 
HMS FMP and its amendments and other applicable laws, is to extend, to 
the extent practicable, General category fishing opportunities 
throughout the General category time periods, as was intended when the 
time period subquotas were adopted. RFDs are an effective effort 
control that can assist with that purpose.
    Regarding the status of BFT, the western Atlantic BFT stock is 
assessed by ICCAT, and the most recent assessment was conducted in 
2021. Domestically, following the 2017 stock assessment, NMFS 
determined that the overfished status for BFT is unknown and that the 
stock is not subject to overfishing. This stock status remains in 
effect. NMFS published a temporary rule in 2022 (87 FR 33049, June 1, 
2022), that increased the baseline U.S. BFT quota to 1,316.14 mt (not 
including the 25 mt ICCAT allocated to the United States to account for 
bycatch of BFT in pelagic longline fisheries in the Northeast Distant 
Gear Restricted Area), as codified at Sec.  635.27(a), consistent with 
Recommendation 21-07 adopted by ICCAT at the November 2021 annual 
meeting. ICCAT Recommendation 22-10 maintained the U.S. BFT quota as 
specified above. Further information on the BFT stock assessment and 
stock status can be found in that temporary rule and associated 
Environmental Assessment. This action helps manage the BFT fisheries 
within that available U.S. quota and category subquotas as established 
in existing regulations.
    NMFS is not considering modifications of the General category time 
period subquotas in this action. Amendment 13 to the 2006 Consolidated 
HMS FMP (86 FR 27686, May 21, 2021) proposed modifications to the BFT 
category quotas which were further detailed in the Amendment 13 Final 
Environmental Impact Statement published on May 13, 2022 (87 FR 29310). 
As discussed in the final rule for Amendment 13 (87 FR 59966; October 
3, 2022), NMFS determined that the current structure of the fishery 
provides equitable fishing opportunities and decided against modifying 
the General category subquota percentages. NMFS notes, that Amendment 
13, among other things, eliminated the Purse Seine category and 
proportionally reallocated Purse Seine category quota to all of the 
other bluefin quota categories, including the General and Angling 
categories, resulting in an increase to the General category and 
Angling category quota and subquotas. For more information on the 
Amendment 13 quota allocations, please check the Amendment 13 
compliance guide found on the NOAA Fisheries website.
    Comment 4: NMFS received comments supporting the proposed July 
through November Tuesday, Friday, and Saturday schedule of RFDs as well 
as comments suggesting alternative days.

[[Page 33841]]

Some of the commenters supporting the proposed scheduled specifically 
noted that they are in support of not adding Sunday as an RFD because 
adding Sunday would have negative impacts on those fishermen that work 
other jobs full-time during the week and supplement their income with 
weekend fishing trips. Other commenters suggested a weekly schedule of 
consecutive RFDs on Friday, Saturday, and Sunday noting that effort and 
landings rates traditionally are higher on the weekend. One commenter 
suggested a weekly schedule of Thursday, Friday, and Saturday.
    Response: NMFS' proposed schedule of RFDs was based on a review of 
average daily catch rate data for recent years, a review of past years' 
RFD schedules (including the 2021 and 2022 RFD schedules) and how they 
worked to extend the use of the General category quota, and input from 
members of the HMS Advisory Panel, General category participants, and 
Atlantic tunas dealers. The Tuesday, Friday, and Saturday RFD schedule 
allows for two-consecutive-day periods twice each week (Sunday-Monday; 
Wednesday-Thursday) for General category permitted vessels, and 
Charter/Headboat permitted vessels with a commercial sale endorsement, 
to fish for and sell BFT. NMFS believes that two-consecutive-day 
periods twice each week allows for some commercial fishing activity to 
occur each weekend (i.e., Sundays) while also providing opportunity 
throughout the week to move BFT products through the market. NMFS 
acknowledges that Sunday is a high catch and landing day. As some 
commenters noted, fully restricting the weekend by adding an RFD on 
Sunday could have negative unintended impacts for those who could only 
commercially fish on the weekends. Furthermore, further restricting the 
weekend by adding Sunday may push those high catch rates to another 
open day. Additionally, if NMFS set RFDs for the entire weekend, as 
suggested by some commenters, or for three consecutive days, as 
suggested by other commenters, NMFS is concerned the schedule would not 
allow adequate time for fish products to move through the market and 
could continue the recent trend of BFT being landed by General category 
participants but not sold. Based on input received during the public 
comment period for this action and an analysis of daily landings rates, 
NMFS is setting the RFD schedule to be every Tuesday, Friday, and 
Saturday from July 1 through November 30, 2023.
    Comment 5: Some commenters suggested starting RFDs on June 1 
instead of July 1.
    Response: NMFS disagrees that RFDs should start on June 1 because 
catch and landings rates are generally slow at the beginning of June, 
and there is no need to further reduce catch and landings rates at that 
time. Catch and landing rates usually begin to substantially increase 
around July 1. NMFS believes that this schedule of RFDs should increase 
the likelihood of pacing General category landings to extend fishing 
opportunities through a greater portion of the time periods.
    Comment 6: NMFS received comments both supporting and opposing 4 
RFDs per week. Some of those in support noted that adding an additional 
RFD could better assist with slowing the catch, keeping the fishery 
open, and market gluts and some specifically noted that 3 RFDs per week 
have not been effective at extending the General category time periods. 
Others in support suggested that NMFS set RFDs on Tuesday, Friday, 
Saturday, and Sunday noting that weekends are high effort days. One 
commenter suggested a schedule of Wednesday, Friday, Saturday, and 
Sunday and another suggested Friday, Saturday, Sunday, and Monday.
    Commenters opposed to 4 RFDs per week noted that having only 3 open 
days per week would be too much of an economic burden for commercial 
fishermen. Another expressed concerns that an additional RFD would 
create safety-at-sea conflicts due to more effort on open days to 
harvest the General category quota and subquotas. Some suggested 
setting 4 RFDs per week for June through November, while another 
suggested 4 RFDs per week specifically for September through November. 
NMFS also received comments suggesting NMFS set 5 RFDs per week.
    Response: Although NMFS requested comment on the potential setting 
of 4 RFDs per week from July through November, NMFS is not setting 4 
RFDs or 5 RFDs per week during these time periods through this action. 
NMFS acknowledges that although 4 RFDs per week from July through 
November might lengthen the General category season within the time 
periods, it would also limit commercial fishing participants to 3 or 
fewer fishable days per week depending on the weather, thus decreasing 
fishing opportunities, which would conflict directly with the objective 
of this rulemaking. Similarly, potentially decreasing fishing 
opportunities via a schedule of 5 RFDs per week would be contrary to 
the objective of this rulemaking. NMFS may consider 4 RFDs per week in 
the future, if appropriate.
    Comment 7: Most commenters did not support implementing RFDs for 
the December 2023 and January through March 2024 time periods, noting 
that the unpredictable weather during those periods in combination with 
RFDs could result in safety-at-sea issues and potentially limit 
commercial fishermen from landing the relevant subquotas. One commenter 
suggested that NMFS implement RFDs year-round.
    Response: Based on the public comments received, NMFS is not 
finalizing longer RFDs for the December 2023 and January through March 
2024 time periods. NMFS recognizes that the weather during those 
periods is unpredictable and may limit participation such that setting 
RFDs in those periods may not be necessary. For the same reasons, NMFS 
does not support the use of year-round RFDs at this time. NMFS may 
consider RFDs for the December and January through March time periods 
in the future, if appropriate.
    Comment 8: One commenter noted that RFDs would have a negative 
impact on fishing tournaments and suggested that NMFS maintain the 
proposed RFD schedule, i.e., Tuesday, Friday, and Saturday RFDs 
beginning July 1, 2023. The commenter noted that many fishing 
tournaments have established their dates based around the proposed 
schedule and that any modifications to the RFD schedule could have 
additional negative economic impacts on BFT tournament operations and 
local communities.
    Response: NMFS acknowledges that RFDs that occur on a tournament 
date may negatively affect BFT fishing at those tournaments since some 
tournament participants are General category permit holders and are 
prohibited from fishing for BFT on RFDs. However, on an RFD, General 
category permit holders may still participate in non-BFT fishing during 
the tournament and may land sharks (if they also hold a shark 
endorsement), swordfish, billfish, and/or bigeye, albacore, yellowfin, 
and skipjack tunas recreationally as otherwise allowed. Additionally, 
on an RFD, Charter/Headboat-permitted vessels may participate 
recreationally in HMS fishing tournaments, including for BFT, under the 
applicable Angling category restrictions and size class limits. Under 
the current regulations, tournament operators are required to register 
their tournament with NMFS at least four weeks prior to the start of 
the tournament. Given past scheduled tournaments from July through 
November and the tournaments that have registered already for this 
year,

[[Page 33842]]

NMFS anticipates or has been notified of several fishing tournaments 
that will likely include BFT. Should a tournament change its dates of 
operation, NMFS encourages tournament operators to contact NMFS to 
update the dates for which their tournament is registered. NMFS does 
not plan to waive RFDs specifically and solely to accommodate 
tournaments as doing so could eliminate the benefits of RFDs by 
allowing General category and Charter/Headboat permitted vessels with a 
commercial sale endorsement the opportunity to land and sell commercial 
size BFT on those scheduled RFD dates. NMFS will closely monitor BFT 
landings and catch rates and, based on that information, NMFS will 
consider waiving RFDs if BFT landings and catches indicate that such 
action is warranted, after taking into consideration the inseason 
adjustment determination criteria at Sec.  635.27(a)(7). This would 
include, among other things, review of dealer reports, daily landing 
trends, and the availability of BFT on fishing grounds. NMFS could 
waive an RFD by adjusting the daily retention limits by filing such an 
adjustment in the Federal Register, under Sec.  635.23(a)(4).
    Comment 9: NMFS received some comments expressing concern that 
increasing the General category retention limit from the default of 1 
fish to 3 fish to begin the June through August time period is 
unwarranted. Some commenters suggested that NMFS increase the retention 
limit to 3 fish to begin the June through August time period and 
subsequently decrease the retention limit from 3 fish to 1 fish when 
landings rates begin to increase. One commenter requested that NMFS 
maintain the default of 1 fish during the summer and increase the 
retention limit to 2 or 3 fish during the fall to correspond with RFDs. 
One commenter suggested that NMFS increase the retention limit to 2 
fish instead of 3 fish to begin the June the August time period.
    Response: This action focuses on implementing RFDs, as currently 
authorized in the regulations, to slow the rate of General category 
landings, prevent early closures, and extend fishing opportunities 
through a greater portion of the 2023 General category time periods. 
NMFS will continue to use retention limits, RFDs, and other available 
management tools to manage the BFT fisheries, within the available BFT 
quota and established subquotas. In recent years, because the rate of 
landings and overall fishing effort in the General category is 
typically slow in early June, NMFS has regularly set the daily 
retention limit for the beginning of the June through August period at 
3 fish, following consideration of the relevant criteria provided under 
Sec.  635.27(a)(7), including supporting scientific data collection. 
NMFS monitors the landings closely, and, as appropriate, NMFS then 
typically reduces the limit to the 1-fish default level to ensure 
fishing opportunities in all respective time-periods and to ensure that 
the available quota is not exceeded. Any change in the retention limit 
considers the relevant criteria and includes consideration of the catch 
rates associated with the various authorized gear types (e.g., harpoon, 
rod and reel). Throughout the season, NMFS monitors landings and catch 
rates and will close the fishery or modify retention limits as 
appropriate to ensure the quotas are not exceeded. NMFS will continue 
to monitor and evaluate the effectiveness of all these management 
measures in the context of current conditions to determine whether 
other actions are necessary.
    Comment 10: NMFS received comments suggesting mandatory fish 
handling guidelines (e.g., ice requirement) and better enforcement of 
safety gear requirements for commercial fishing vessels noting that a 
number of vessels do not have the correct safety gear and do not 
properly handle BFT for sale.
    Response: This comment is outside of the scope of this action. NMFS 
notes that guidance for the commercial fishing industry regarding 
seafood handling can be found under the Seafood Hazard Analysis and 
Critical Control Point (HACCP) and the Food and Drug Administration 
(FDA) Food Safety Modernization Act. Additionally, provisions regarding 
commercial fishing vessel safety can be found under the Coast Guard 
regulations in 46 CFR part 28.
    Comment 11: One commenter suggested going to a tag system to 
address safety gear concerns.
    Response: It is unclear if the commenter is talking about a landing 
tag system or the tag-and-release program. However, this comment is 
outside of the scope of this action. NMFS notes that interested vessel 
operators can participate in a tag-and-release program where NMFS-
issued conventional tags, reporting cards, and detailed instructions 
for their use may be obtained from the NMFS Cooperative Tagging Center 
((800) 437-3936 or https://www.fisheries.noaa.gov/southeast/atlantic-highly-migratory-species/cooperative-tagging-program). Additionally, 
NMFS requires dealers to affix a dealer tag to all BFT purchased or 
received from a U.S. vessel immediately upon offloading the BFT.

Classification

    NMFS is issuing this rule pursuant to 304(c) of the Magnuson-
Stevens Act. The NMFS Assistant Administrator has determined that this 
temporary rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, other provisions of the Magnuson-Stevens Act, ATCA, and 
other applicable law.
    This temporary rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This temporary rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this rule. The FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA, our responses to those 
comments and a summary of the analyses completed to support the action. 
The FRFA is provided below.
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
agencies to state the need for and objective of the final action. The 
objective of this temporary rulemaking is to set a schedule of RFDs for 
the 2023 fishing year that should slow the rate of General category 
landings to extend fishing opportunities through a greater portion of 
the General category time periods (similar to the 2022 RFD schedule).
    Section 604(a)(2) of the RFA requires a summary of significant 
issues raised by the public in response to the IRFA, a summary of the 
agency's assessment of such issues, and a statement of any changes made 
as a result of the comments. As described above, during the public 
comment period, NMFS received comments both in support of and opposed 
to establishing RFDs for 2023 and part of 2024 year. No comments 
specifically referenced the IRFA, although some comments raised a 
variety of economic concerns including whether RFDs would affect the 
market (see comments 2, 6, 8), whether RFDs would affect some parts of 
the fishery more than others (see comment 6), and whether RFDs would 
negatively affect tournaments (see comment 8). NMFS' responses to those 
comments are summarized above. After careful consideration of all the 
comments received, NMFS is not finalizing an RFD schedule for the 
December 2023 or January through March 2024 time periods.
    Section 604(a)(3) of the RFA requires the response of the agency to 
any

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comments filed by the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) in response to the proposed rule, and a detailed 
statement of any change made to the proposed rule in the temporary rule 
as a result of the SBA comments. NMFS did not receive any comments from 
the Chief Counsel for Advocacy of the SBA on the proposed rule.
    Section 604(a)(4) of the RFA requires agencies to provide 
descriptions of, and where feasible, an estimate of the number of small 
entities to which the rule would apply. NMFS established a small 
business size standard of $11 million in annual gross receipts for all 
businesses in the commercial fishing industry (North American 
Industrial Classification System (NAICS) 11411) for RFA compliance 
purposes. The Small Business Administration (SBA) has established size 
standards for all other major industry sectors in the United States, 
including the scenic and sightseeing transportation (water) sector 
(NAICS code 487210), which includes for-hire (charter/party boat) 
fishing entities. The SBA has defined a small entity under the scenic 
and sightseeing transportation (water) sector as one with average 
annual receipts (revenue) of less than $14.0 million. NMFS considers 
all HMS permit holders, both commercial and for-hire, to be small 
entities because they had average annual receipts of less than their 
respective sector's standard of $11 million and $14 million. The 2021 
total ex-vessel annual revenue for the BFT fishery was $11.8 million. 
Since a small business is defined as having annual receipts not in 
excess of $11.0 million, each individual BFT permit holder would fall 
within the small entity definition. The numbers of relevant annual 
Atlantic Tunas or Atlantic HMS permits as of October 2022 are as 
follows: 2,630 General category permit holders and 4,175 HMS Charter/
Headboat permit holders, of which 1,873 hold HMS Charter/Headboat 
permits with a commercial sale endorsement.
    Section 604(a)(5) of the RFA requires agencies to describe any new 
reporting, record-keeping, and other compliance requirements. This 
temporary rule does not contain any new collection of information, 
reporting, or record-keeping requirements. This temporary rule would 
set a schedule of RFDs for July 1 through November 30, 2023 as an 
effort control for the General category.
    Section 604(a)(6) of the RFA, requires agencies to describe the 
steps the agency has taken to minimize the significant economic impact 
on small entities consistent with the stated objectives of applicable 
statutes, including a statement of the factual, policy, and legal 
reasons for selecting the alternative adopted in the temporary rule and 
why each one of the other significant alternatives to the rule 
considered by the agency which affect the impact on small entities was 
rejected.
    This temporary rule does not change the U.S. Atlantic BFT quotas or 
implement any new management measures not previously considered under 
the 2006 Consolidated HMS FMP and its amendments. This temporary rule 
will instead set a schedule of RFDs for the General category for 2023. 
Under the regulations, when a General category subquota is reached or 
projected to be reached during a General category time period, NMFS 
closes the General category fishery. Retaining, possessing, or landing 
BFT under that quota category is prohibited on and after the effective 
date and time of a closure notice for that category, for the remainder 
of the fishing year, until the opening of the subsequent time period or 
until such date as specified. In recent years, these closures, if 
needed, have generally occurred toward the end of a time period. 
According to communications with dealers and fishermen, several of the 
high-volume Atlantic tunas dealers in 2019, 2020, and 2022 were 
limiting their purchases of BFT and buying no or very few BFT (such as 
harpooned fish only) on certain days during the beginning portion of 
the June through August time period in order to extend the available 
quota until later in the time period given market considerations. 
However, while these actions may have prevented large numbers of BFT 
from entering the market at the same time and may have lengthened the 
time before any particular time period was closed, because these 
actions were not pre-scheduled or consistently implemented across the 
fishery, there were negative impacts experienced by some General 
category and Charter/Headboat permitted fishermen, who could not find 
buyers for their BFT. As a result, a number of BFT that normally would 
have been sold were not, and opportunities may not have been equitably 
distributed among all permitted vessels. In 2021, NMFS set pre-
scheduled RFDs for the General category fishery on certain days 
(Tuesdays, Fridays, and Saturdays) from September through November to 
increase the likelihood of pacing General category landings to extend 
fishing opportunities through a greater portion of the time periods. In 
2022, NMFS again set RFDs for the General category fishery on every 
Tuesday, Friday, and Saturday from July 1 through November 30.
    Table 1 shows the General category closure dates by time period for 
2018 through 2022. The General category remained open for the entire 
duration of the June through August time period in 2018 and 2020, and 
of the December time period in 2018 and 2019. The October through 
November time period tends to close the earliest of any time period, 
and NMFS often receives requests to reopen that time period. Following 
the consideration of numerous factors (i.e., daily landings rates, 
weather conditions, available quota, etc.), NMFS reopened the October 
through November time period in 2018 and 2020. In 2021, NMFS set RFDs 
for the September through November time periods, resulting in the 
General category fishing extending late into September and through the 
end of October through November time period. In 2022, NMFS set RFDs for 
the June through November time periods, with the first RFD established 
on July 1. Closure dates for 2022 were February 11, August 10, 
September 19, October 24, and December 10, respectively, for each time 
period. NMFS believes that the relatively early closure dates in 2022 
were due in part to high daily landings rates when the time periods 
were open in the summer and fall. Based on a review of average daily 
landings rates, without the use of RFDs, NMFS likely would have needed 
to close the June through November time periods much earlier if the 
RFDs were not in place. These high landings rates continued into 
December 2022, resulting in that time period closing after 10 days, 
much earlier than in 2018 through 2021. The use of RFDs in 2022 from 
June through November paced the landings as much as possible and 
extended the fishing opportunities for the June through November time 
periods.

[[Page 33844]]



                       Table 1--General Category Closure Dates by Time Period (2018-2022)
----------------------------------------------------------------------------------------------------------------
                                                         Time period
           -----------------------------------------------------------------------------------------------------
   Year                                                                         October through
            January through March   June through  August        September           November         December
----------------------------------------------------------------------------------------------------------------
2018......  Mar 2................  Aug 31...............  Sept 23.............  Closed Oct 5;    Dec 31.
                                                                                 Reopened Oct
                                                                                 31 through Nov
                                                                                 2; Reopened
                                                                                 Nov 12 through
                                                                                 Nov 26.
2019......  Feb 28...............  Aug 8................  Sept 13.............  Oct 13.........  Dec 31.
2020......  Feb 24...............  Aug 31...............  Sept 27.............  Closed Oct 9;    Dec 14.
                                                                                 Reopened Oct
                                                                                 28-29;
                                                                                 Reopened Nov 7-
                                                                                 8.
2021......  Feb 27...............  Aug 4................  Sept 23.............  Nov 30.........  Closed Dec 14;
                                                                                                  Reopened Dec
                                                                                                  20-23.
2022......  Feb 11...............  Aug 10...............  Sept 19.............  Oct 24.........  Dec 10.
----------------------------------------------------------------------------------------------------------------

    Table 2 shows the average ex-vessel price per pound of BFT during 
each General category time period for 2018 through 2022 adjusted to 
real 2022 dollars using the Gross Domestic Product (GDP) deflator. Ex-
vessel price per pound was lower for the September time period, with an 
average (2018 through 2022) of $6.71, and varied over the summer and 
fall period, with averages of $7.04 for the June through August time 
period and $7.09 for the October through November time period. In 2022, 
the average price per pound was higher for the January through March 
time period compared to the average price per pound during that time 
period in 2021. In most time periods, the 2022 average price per pound 
was also higher than the 2020 average price per pound. NMFS believes 
that this increase in average price was in part due to the use of RFDs 
in 2022.

  Table 2--Average Ex-Vessel Price per Pound ($) of BFT by General Category Time Period (2018-2022) Adjusted to
                                               Real 2022 Dollars *
----------------------------------------------------------------------------------------------------------------
                                                                             Time period
                                                    ------------------------------------------------------------
                        Year                          January      June                   October
                                                      through    through    September     through      December
                                                       March      August                  November
----------------------------------------------------------------------------------------------------------------
2018...............................................      $8.80      $8.13        $7.67        $8.83       $11.14
2019...............................................       7.03       6.48         7.32         6.34        14.04
2020...............................................       7.00       5.62         5.92         6.33         6.50
2021...............................................       6.94       7.60         6.59         7.85         9.06
2022...............................................       8.84       7.37         6.08         6.09         7.19
2018 through 2022 average..........................       7.72       7.04         6.71         7.09         9.59
----------------------------------------------------------------------------------------------------------------
* Adjusted using the Gross Domestic Product (GDP) Deflator.

    Table 3 shows the number and total weight of BFT that were landed 
but not sold by fishermen fishing under the General category quota for 
2018 through 2022. The number and weight of unsold BFT increased from 
2018 through 2022 with a peak in 2020 (143 BFT and 25.8 mt) in part due 
to the COVID-19 pandemic, and substantial decrease in 2021 (from 143 to 
12 BFT and 25.8 mt to 2.0 mt), followed by an increase in 2022 (48 BFT 
and 9.1 mt). NMFS believes this increase is in part due to an influx of 
domestically caught BFT entering the market at one time resulting in 
dealers limiting their purchases of BFT leading to General category 
participants. This situation resulted in unprecedented high landings 
days in several time periods and BFT fishermen having a difficult time 
finding buyers for landed BFT.

   Table 3--Number (Count) and Weight (mt) of BFT Landed but Unsold by
            General Category Participants by Year (2018-2022)
------------------------------------------------------------------------
                  Year                         Count        Weight (mt)
------------------------------------------------------------------------
2018....................................              14             2.6
2019....................................              20             3.8
2020....................................             143            25.8
2021....................................              12             2.0
2022....................................              48             9.1
                                         -------------------------------
    Total...............................             237            43.3
------------------------------------------------------------------------

    After considering public comment, NMFS is setting a schedule of 
RFDs for the 2023 fishing year that would specify days on which General 
category quota fishing and sales will not occur. Specifically, the 
schedule allows for two-consecutive-day periods twice each week for BFT 
product to move through the market while also allowing some commercial 
fishing activity to occur each weekend (i.e., Sundays). Because this 
schedule of RFDs applies to all

[[Page 33845]]

participants equally, NMFS anticipates that this schedule would extend 
fishing opportunities through a greater proportion of the time periods 
in which they apply by spreading fishing effort out over time, similar 
to the 2022 fishing season. Further, to the extent that the ex-vessel 
revenue of a BFT sold by a General or HMS Charter/Headboat permitted 
vessel (with a commercial endorsement) may be higher when a lower 
volume of domestically-caught BFT is on the market at one time, the use 
of RFDs may result in some increase in BFT price, and the value of the 
General category subquotas could increase, similar to that of 2022. 
Thus, although NMFS anticipates that the same overall amount of the 
General category quota would be landed as well as the same amount of 
BFT landed per vessel, there may be positive impacts to the General 
category and Charter/Headboat (commercial) BFT fishery because using 
RFDs may more equitably distribute opportunities across all permitted 
vessels for longer durations within the time periods.
    If NMFS does not implement a schedule, without any other changes, 
it is possible that the General category could have fewer open days 
later in the fishing season when ex-vessel prices tend to be higher 
(Table 1) as observed in 2018 through 2022. Additionally, without RFDs 
the trends of increasing numbers of unsold BFT (Table 3) and decreasing 
ex-vessel prices (Table 2) from 2018 through 2020 could continue. If 
those trends were to continue, all active General category permit 
holders could experience negative economic impacts similar to 2019, 
2020, and 2022 where dealers were limiting their purchases of BFT and 
buying no or very few BFT on certain days in order to extend the 
available quota.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rule. As part of 
this rulemaking process, NMFS has prepared a booklet summarizing 
fishery information and regulations for Atlantic BFT General category 
RFDs for the 2023 fishing year. That booklet notice serves as the small 
entity compliance guide. Copies of the compliance guide are available 
from NMFS (see ADDRESSES).

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

    Dated: May 19, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-11079 Filed 5-24-23; 8:45 am]
BILLING CODE 3510-22-P