[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Proposed Rules]
[Pages 13667-13674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03594]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 240213-0046]
RIN 0648-BM66


Atlantic Highly Migratory Species; Bluefin Tuna General Category 
Effort Controls and Related Regulations

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to codify a schedule of restricted-fishing 
days (RFDs) for the 2024 fishing year and subsequent fishing years; 
reestablish a General category default retention limit for large medium 
or giant bluefin tuna (BFT) on open days; and make clarifications to 
the BFT dealer regulations and the definition of a bluefin statistical 
document (BSD) tag. This proposed action is necessary to increase the 
likelihood of pacing General category landings to extend fishing 
opportunities through a greater portion of the General category time 
period subquotas. Lastly, this proposed action would clarify existing 
regulations to ensure better understanding and compliance by General 
category quota participants.

DATES: Written comments may be submitted via https://www.regulations.gov and must be received by March 25, 2024. Comments 
may also be submitted at a public hearing or webinar. NMFS will hold a 
public hearing via conference call and webinar for this proposed rule 
on March 19, 2024, from 2 p.m. to 4 p.m., Eastern Time. Information for 
registering and accessing the webinar can be found at https://www.fisheries.noaa.gov/action/proposed-rule-set-general-category-effort-controls-and-clarify-related-atlantic-bluefin-tuna. Requests for 
sign language interpretation or other auxiliary aids should be directed 
to Larry Redd, Jr., (see FOR FURTHER INFORMATION CONTACT section) at 
least 7 days prior to the meeting. The public is reminded that NMFS 
expects participants at conference calls and webinars to conduct 
themselves appropriately. At the beginning of each conference call and 
webinar, the moderator will explain how the conference call and webinar 
will be conducted and how and when participants can provide comments. 
NMFS will structure the conference call and webinar so that all members 
of the public will be able to comment. Participants are expected to 
respect the ground rules, and those that do not may be asked to leave 
the conference calls and webinars.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2024-0021, by electronic submission. Submit all electronic 
public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and type ``NOAA-NMFS-2024-0021'' in the Search box 
(note: copying and pasting the FDMS Docket Number directly from this 
document may not yield search results). Click on the ``Comment'' icon, 
complete the required fields, and enter or attach your comments. 
Written comments sent by any other method, to any other address or 
individual, or received after the close of the comment period, may not 
be considered by NMFS. All comments received are a part of the public 
record and will generally be posted for public viewing on https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Copies of this proposed rule and supporting documents are available 
from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species or by 
contacting Larry Redd, Jr., or Erianna Hammond (see FOR FURTHER 
INFORMATION CONTACT section).

FOR FURTHER INFORMATION CONTACT: Larry Redd, Jr., [email protected], 
or Erianna Hammond, [email protected], at 301-427-8503.

SUPPLEMENTARY INFORMATION:

Background

    BFT fisheries are managed under the 2006 Consolidated HMS Fishery 
Management Plan (FMP) and its amendments pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 
16 U.S.C. 1801 et seq.) and consistent with the Atlantic Tunas 
Convention Act (ATCA; 16 U.S.C. 971 et seq.). HMS implementing 
regulations are at 50 CFR part 635. Section 635.23 describes the daily 
retention limits for BFT including retention limits on RFDs. Section 
635.27 divides the U.S. BFT quota, established by the United States and 
other members of the International Commission for the Conservation of 
Atlantic Tunas (ICCAT), among the various domestic fishing categories 
per the allocations established in the FMP and its amendments. NMFS is 
required under the Magnuson-Stevens Act at 16 U.S.C. 1854(g)(1)(D) to 
provide U.S. fishing vessels with a reasonable opportunity to harvest 
quotas under relevant international fishery agreements such as the 
ICCAT Convention, which is implemented domestically pursuant to ATCA.
    The BFT fishery is a quota-managed fishery, and the annual U.S. BFT 
quota is established by binding recommendations of ICCAT. The U.S. BFT 
quota established through that process is implemented domestically 
through rulemaking and allocated among six quota categories (General, 
Angling, Harpoon, Longline, Trap, and Reserve). This proposed rule 
considers actions specific to the General category

[[Page 13668]]

quota and General category quota participants, which include Atlantic 
Tunas General category permitted vessels and HMS Charter/Headboat 
permitted vessels when fishing commercially. As described in Sec.  
635.27(a), the overall baseline U.S. annual quota is 1,316.14 metric 
tons (mt). The General category baseline quota is 710.7 mt which is 
suballocated into time period subquotas as follows: January through 
March, 5.3 percent (37.7 mt); June through August, 50 percent (355.4 
mt); September, 26.5 percent (188.3 mt); October through November, 13 
percent (92.4 mt); and December, 5.2 percent (37 mt) (Sec.  635. 
27(a)(1)(i)(A) through (E)).

BFT General Category RFDs

    NMFS originally established regulatory authority to set so-called 
``no-fishing'' days for BFT in the General category fishery in 1995 (60 
FR 38505, July 27, 1995). In that final rule, NMFS described no-fishing 
days as an effort control that could be used to extend the General 
category fishing season, prevent overharvest of quota in any period, 
and improve distribution of fishing opportunities without increasing 
BFT mortality. The regulation provided that scheduled no-fishing days 
would be published in the Federal Register for a comment period of 30 
days, and waiver of such days would be filed with the Federal Register 
a minimum of 5 days in advance of the scheduled no-fishing days if NMFS 
determined that the effort control would impede landing of the monthly 
quotas. Id. at 38506. In 1996, NMFS began using the term ``RFD'' rather 
than ``no-fishing days'' (61 FR 30183, June 14, 1996). From 1995 
through 2007, NMFS set RFDs on annual basis. NMFS stopped scheduling 
RFDs in 2008, as General category landings over that timeframe were 
lower compared to the late 1990s and the General category fishery did 
not need to be closed.
    Due to increased BFT landings rates in the General category in 2019 
and 2020 and numerous requests from members of the Atlantic HMS 
Advisory Panel, General category quota participants, and Atlantic tunas 
dealers, NMFS proposed to schedule RFDs on all Tuesdays, Fridays, and 
Saturdays from July 20 through November 30, 2021 (86 FR 25992, May 12, 
2021). Due to administrative timing issues related to publication in 
the Federal Register, NMFS established RFDs on all Tuesdays, Fridays, 
and Saturdays from September 3 through November 30, 2021 (86 FR 43421, 
August 9, 2021). Because the use of RFDs in 2021 succeeded in extending 
fishing opportunities through a greater portion of the relevant time 
periods and the fishing year overall consistent with management 
objectives for the fishery, NMFS finalized an RFD schedule for the 2022 
fishing year of all Tuesdays, Fridays, and Saturdays from July 1 
through November 30, 2022 (87 FR 33056, June 1, 2022). In 2023, NMFS 
proposed the same weekly schedule for the July through November 
timeframe, along with extending RFDs to the winter fishery (i.e., the 
December and January through March time periods). Based on public 
comment and a review of average daily catch rates in previous fishing 
years, NMFS determined that finalizing an RFD schedule for the December 
2023 or January through March 2024 time periods was unwarranted at that 
time. Thus, NMFS finalized an RFD schedule of all Tuesdays, Fridays, 
and Saturdays from July 1 to November 30, 2023 (88 FR 33839, May 25, 
2023).

BFT General Category Retention Limits

    NMFS established a default daily retention limit for large medium 
and giant BFT of one fish per vessel in 1995 (60 FR 38505, July 27, 
1995). To provide for maximum utilization of the quota, NMFS had the 
flexibility to increase or decrease the large medium and giant BFT 
daily retention limit over a range of zero (on RFDs) to a maximum of 
three per vessel via an inseason action. In 2011, NMFS adjusted the 
upper limit of this range to five fish per vessel to increase 
opportunities to harvest the General category quota while maintaining 
the default retention limit of one fish per vessel (76 FR 74003, 
December 30, 2011). The default retention limit was maintained through 
2018, when NMFS published a final rule that made editorial corrections 
amending the regulations for HMS (83 FR 33148, July 17, 2018). In that 
action, NMFS inadvertently removed regulatory text stating the default 
retention limit on non-RFD fishing days. To correct this technical 
error, with this action NMFS proposes to again establish default 
General category retention limits on non-RFDs.

Proposed RFD and Retention Limit Measures

    The purpose of this proposed action is to modify the process of 
scheduling RFDs and reestablish General category default daily 
retention limits for large medium or giant BFT on open days. As effort 
controls, both RFDs and daily retention limits are meant to extend 
General category fishing opportunities through a greater portion of the 
General category time period subquotas, prevent overharvest of quota in 
any period, and improve distribution of fishing opportunities without 
increasing BFT mortality. NMFS has prepared a draft Environmental 
Assessment (EA), Regulatory Impact Review (RIR), and an Initial 
Regulatory Flexibility Analysis (IRFA) that present and analyze the 
anticipated environmental, social, and economic impacts of each 
alternative considered for this proposed rule. A brief summary of the 
alternatives considered is provided below. Additional information 
regarding this action and BFT management overall can be found in the 
FMP and its amendments, the annual HMS Stock Assessment and Fishery 
Evaluation Reports, and online at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.
    Under Alternative B, which NMFS is considering as four sub-
alternatives (B1 is the preferred alternative), NMFS would modify the 
process for setting an RFD schedule. Under these alternatives, instead 
of conducting an annual rulemaking to set an annual RFD schedule, NMFS 
would set a default RFD schedule for specific General category time 
periods and days for the 2024 fishing year and subsequent years. If the 
scheduled RFDs are codified, NMFS may remove them or establish 
additional RFDs, as appropriate, through further rulemaking. In recent 
years, NMFS has noticed that the number of BFT landed but unsold by 
General category quota participants have increased in association with 
high rates of landings. Codifying RFDs would provide General category 
quota participants and dealers advanced time (i.e., more than a month) 
to plan and coordinate activities for the expected time periods with 
high BFT landings rates, potentially decreasing the amount of BFT that 
are landed but unsold. Under the preferred alternative for an RFD 
schedule (Alternative B1), NMFS would codify a 3-day RFD schedule for 
every Tuesday, Friday, and Saturday from July 1 through November 30. 
NMFS has used this RFD schedule since 2022 to correspond with the time 
periods when catch rates have been historically high in the General 
category often resulting in premature closures of the fishery. The 
preferred RFD schedule would allow for two consecutive 2-day periods 
each week (Sunday-Monday; Wednesday-Thursday). This schedule would 
increase the efficient utilization of the BFT resource. It would allow 
dealers to plan to move BFT product through the market and therefore 
reduce the amount of General category BFT landed but unsold. 
Additionally, codifying this schedule could allow for

[[Page 13669]]

some commercial fishing activity each weekend (i.e., on Sunday). 
Providing the opportunity for the time periods to last as long as 
possible would likely increase General category participation by 
commercial fishermen and provide access to fishing grounds while BFT 
are available. Furthermore, because this schedule would allow for at 
least 1 day of fishing on a weekend, which is when many tournaments 
operate, this specific RFD schedule would allow General category quota 
participants the opportunity to participate in at least 1 day of 
fishing tournaments.
    NMFS may waive these scheduled RFDs for the specific time periods 
and days on which they apply by adjusting the daily BFT retention limit 
from zero up to five after considering the criteria at Sec.  
635.27(a)(7). Considerations include, among other things, review of 
dealer reports, daily landing trends, and the availability of BFT on 
fishing grounds. NMFS would announce any such waiver by filing a 
retention limit adjustment with the Office of the Federal Register for 
publication. NMFS also may waive previously designated RFDs effective 
upon closure of the General category fishery so that persons aboard 
vessels permitted in the General category may conduct only tag-and-
release fishing for BFT under Sec.  635.26(a).
    Under the preferred alternative for a General category daily 
retention limit (Alternative D3), NMFS would establish a General 
category daily retention limit of three large medium or giant BFT per 
vessel on open days in June and one large medium or giant BFT per 
vessel on open days for all other months in time periods where the 
fishery is open (i.e., January through March and July through December; 
note that the General category BFT fishery is not open during the 
months of April and May). In recent years, NMFS has increased the daily 
retention limit to three BFT in June when landing rates are low and 
then decreased the daily retention limit to one BFT when landing rates 
increased. This alternative would allow the continuation of a three-
fish retention limit during the month of June when landing rates are 
low, thus providing some benefit to those General category quota 
participants that could retain more than one BFT during a period in 
which NMFS typically has increased the retention limit.
    These preferred alternatives would help General category quota 
participants, tournament operators, and dealers with fishery-related 
planning (e.g., fishers' travel to fishing grounds or engage in other 
fishing endeavors) by providing an advance schedule of open and closed 
days and the applicable retention limits when the fishery is open. 
Furthermore, the preferred alternatives would provide an administrative 
cost savings as the Agency would publish fewer Federal Register actions 
setting RFD schedules on an annual basis and inseason retention limits 
adjustments for the General category fishery. Overall, these preferred 
alternatives meet the goals and objectives of this action and are 
expected to have neutral to minor beneficial ecological, social, and 
economic impacts.
    In addition to the proposed measures, in the draft EA for this 
action, NMFS analyzed a status-quo alternative (Alternative A) that 
would maintain the recent practice of NMFS conducting annual rulemaking 
to set a schedule of RFDs for upcoming fishing years. NMFS does not 
prefer the no action alternative as administrative timing issues could 
occur related to final publication of an RFD schedule (similar to the 
2021 RFD rulemaking) resulting in a later start of RFDs. Furthermore, 
Alternative A would not provide the same benefit to General category 
quota participants, tournament operators, and dealers in terms of being 
able to plan for RFDs. The draft EA for this action also describes the 
impacts of three other RFD schedules: a 3-day-per-week RFD schedule for 
every Thursday, Friday, and Saturday from July 1 through November 30 
(Alternative B2); a 3-day-per-week RFD schedule for every Friday, 
Saturday, and Sunday from July 1 through November 30 (Alternative B3); 
and a 4-day (or more)-per-week RFD schedule from July 1 through 
November 30 (Alternative B4). Although Alternatives B2, B3, and B4 
could pace landings just as or more effectively than the preferred 
alternative, implementing any of these alternatives is unlikely to 
allow adequate time for fish products to move through the market. 
Consecutive RFDs could result in market gluts leading to an influx of 
BFT product (i.e., consecutive fishable days per week could lead to an 
oversupply of BFT that are landed and unable to be sold). These market 
gluts as a result could continue the recent trend of BFT being landed 
by General category quota participants but not sold to dealers.
    The draft EA also describes the impacts of eliminating RFDs 
(Alternative C). NMFS does not prefer this alternative as it would not 
meet the objectives of this rulemaking inasmuch as it would result in 
shorter time periods when fishing is allowed and thus reduced fishing 
opportunity.
    Lastly, the draft EA describes the impacts of two other 
alternatives for General category default daily retention limits as 
follows: maintain the current regulations at Sec.  635.23(a)(3), which 
do not establish a default retention limit on open days (i.e., non-
RFDs) when the General category is open (Alternative D1); and establish 
a General category default daily retention limit of one large medium or 
giant BFT (i.e., one fish measuring 73 inches (185 cm) curved fork 
length or greater) per vessel on open days when the General category is 
open, for all General category time periods, or unless adjusted with an 
inseason action, if warranted (Alternative D2). NMFS does not prefer 
Alternatives D1 and D2 because General category quota participants may 
be limited by either not knowing the retention limit until publication 
of an action or by having a one-fish retention limit which may slightly 
adversely impact those fishermen who might be able to land and retain 
more than one BFT during the month of June when NMFS typically 
increases the retention limit.

Proposed Regulatory Clarification of Dealer Activities on RFDs

    Dealer reporting regulations apply to all dealers who first receive 
HMS products (Sec.  635.5(b)). Under Sec.  635.2, ``first receive'' 
means to take possession for commercial purposes of any HMS or any part 
thereof by purchasing, trading or bartering for it from the fishing 
vessel owner or operator once it is offloaded, except when such 
possession is solely for transport. A BFT dealer or a dealer's agent 
must affix a dealer tag to each BFT purchased or received from a U.S. 
vessel immediately upon offloading the BFT (Sec.  635.5(b)(2)(ii)). As 
defined under Sec.  635.2, a dealer tag is a numbered, flexible, self-
locking ribbon issued by NMFS to a dealer for the identification of BFT 
sold to a permitted dealer. A dealer tag is not transferable and is 
usable only by the dealer to whom it is issued. Id. Dealer tags may not 
be reused once affixed to a tuna or recorded on a package, container, 
or report. Id. The dealer tag must remain on the fish until it is cut 
into portions. Id. If the BFT or BFT parts subsequently are packaged 
for transport for domestic commercial use or for export, the number of 
the dealer tag or the BSD tag must be written legibly and indelibly on 
the outside of any package containing the tuna. Id. Such tag number 
also must be recorded on any document accompanying the shipment of BFT 
for commercial use or export. Id.
    With the recent use of RFDs, NMFS has received questions about 
dealer requirements relative to RFDs (e.g., timing of transfer and sale 
to a dealer,

[[Page 13670]]

timing of affixing a dealer tag). NMFS is also aware of situations in 
which permitted dealers provide an individual with dealer tags on open 
days and RFDs in an attempt to allow the individual to act as a 
dealer's agent for the purposes of tagging a commercially landed BFT 
when a dealer is unavailable to first receive BFT on that day. To 
address these ongoing questions and concerns and assist with 
enforcement of RFDs, NMFS is proposing clarifications to the 
regulations as outlined below.
    Currently, on an RFD, Atlantic Tunas General category permitted 
vessels may not fish for (including catch-and-release or tag-and-
release fishing), possess, retain, land, or sell BFT (Sec.  
635.23(a)(2)). HMS Charter/Headboat permitted vessels with a commercial 
sale endorsement also are subject to these restrictions that preclude 
fishing commercially for BFT or selling the BFT under the General 
category restrictions and retention limits, but such vessels may still 
fish for, possess, retain, or land BFT when fishing recreationally 
under applicable HMS Angling category rules (Sec.  635.23(c)(2)). NMFS 
is not proposing changes to these restrictions that apply on RFDs.
    Accordingly, regardless of when a BFT is landed by a General 
category permitted vessel or an HMS Charter/Headboat permitted vessel 
with a commercial sale endorsement fishing commercially for BFT under 
the General category restrictions and retention limits, BFT that is 
intended for sale must be in the possession of a permitted dealer no 
later than 2400 local time the day prior to an RFD (i.e., the open day 
before an RFD). Any commercially landed BFT that is in the possession 
of a General category permit holder or an HMS Charter/Headboat permit 
holder with a commercial sale endorsement operating under the 
commercial restrictions and regulations at 0000 local time on an RFD is 
in violation of the RFD regulations at Sec. Sec.  635.2 and 635.23(a). 
Atlantic Tunas General category and HMS Charter/Headboat permit holders 
that intend to sell BFT must land and transfer the BFT to a permitted 
dealer or dealer's agent no later than 2400 local time the day prior to 
an RFD. If the permit holder is unable to sell or otherwise transfer 
the BFT to a permitted dealer before 2400, the permit holder must 
follow the restrictions applicable to landed but not sold BFT specified 
at Sec.  635.5(a)(3). Such permit holders may not be in possession of a 
BFT after 0000 local time on an RFD. NMFS is proposing changes to 
Sec. Sec.  635.23(a) and 635.31(a) to incorporate these clarifications. 
To remain in compliance, NMFS encourages fishermen and dealers to plan 
ahead and make arrangements to land, tag, and sell BFT before midnight 
when the following day is an RFD. No BFT may be possessed, landed, 
tagged, or sold on an RFD, even if the BFT was harvested on an open day 
but the vessel returned to port too late to meet a dealer.
    NMFS is also proposing modifications to the applicable dealer 
regulations in section Sec.  635.5(b) to clarify that, on an RFD, a 
dealer or dealer's agent may not purchase or place a dealer tag on a 
BFT that is on or has been offloaded from an Atlantic Tunas General 
category or HMS Charter/Headboat category permitted vessel, regardless 
of when the fish was landed. Similarly, NMFS proposes in section Sec.  
635.5(b)(2)(ii)(A) that a dealer or dealer's agent must affix a dealer 
tag to each BFT purchased or first received from a U.S. vessel 
immediately upon offloading the BFT. On an RFD, a dealer or dealer's 
agent may continue to first receive, place dealer tags on, or purchase 
BFT from vessels with other Atlantic Tunas permits (i.e., Harpoon, 
Longline, Trap) (Sec.  635.4(d)(1)). NMFS is also proposing to clarify 
that a dealer's agent is a person who is currently employed by a place 
of business covered by the dealer's permit; is a primary participant in 
the identification, weighing, and/or first receipt of fish as they are 
received; and fills out dealer reports as required under Sec.  635.5. 
This interpretation of a dealer's agent is consistent with the 
description of a dealer proxy under Sec.  635.8(b)(4). Finally, NMFS is 
clarifying the meaning of ``BSD'' in the definition of a BSD tag at 
Sec.  635.2 to be ``bluefin statistical document.'' The effects of 
these changes are primarily administrative and no environmental or 
economic effects are anticipated.

Classification

    Pursuant to section 304(g) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this proposed rule is 
consistent with the 2006 Consolidated HMS FMP and its amendments, other 
provisions of the Magnuson-Stevens Act, ATCA, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Although the agency has concluded that the proposed rule will not 
have a significant economic impact on a substantial number of small 
entities, in the interest of transparency an IRFA was prepared 
consistent with the standards in section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact that this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble. A summary of the analysis 
follows. A copy of this analysis is available from NMFS (see ADDRESSES 
section).
    Section 603(b)(1) of the RFA requires agencies to describe the 
reasons why the action is being considered. The purpose of this 
proposed rulemaking is, consistent with the objectives of the 2006 
Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, 
ATCA, and other applicable law, to modify the process of scheduling 
RFDs and reestablish a General category default daily retention limit 
for large medium or giant BFT on open days. As effort controls, both 
RFDs and daily retention limits are meant to extend General category 
fishing opportunities through a greater portion of the General category 
time period subquotas, prevent overharvest of quota in any period, and 
improve distribution of fishing opportunities without increasing BFT 
mortality. Lastly, this action would clarify existing HMS dealer 
regulations and the definition of a BSD tag to improve the 
understanding of vessel and dealer restrictions and requirements for 
participants in the General category BFT fishery.
    Section 603(b)(2) of the RFA requires agencies to state the 
objectives of, and legal basis for, the proposed action. The objective 
of this proposed rulemaking to simplify and clarify the regulatory 
process regarding RFDs. RFDs increase the likelihood of pacing General 
category landings to extend fishing opportunities through a greater 
portion of the General category time period subquotas. Additionally, 
this proposed action would clarify the General category retention limit 
on open days for better understanding by General category quota 
participants and clarify the existing dealer requirements to ensure 
better compliance by dealers and dealers' agents when operating on an 
RFD. The legal basis for the proposed rule is the Magnuson-Stevens Act.
    Section 603(b)(3) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
NMFS established a small business size standard of $11 million in 
annual gross receipts for all businesses in the commercial fishing 
industry, North American Industry Classification System (NAICS 11411), 
for RFA compliance purposes. The Small Business Administration (SBA)

[[Page 13671]]

has established size standards for all other major industry sectors in 
the United States, including the scenic and sightseeing transportation 
(water) sector (NAICS code 487210), which includes for-hire (charter/
party boat) fishing entities. The SBA has defined a small entity under 
the scenic and sightseeing transportation (water) sector as one with 
average annual receipts (revenue) of less than $14 million. NMFS 
considers all HMS permit holders, both commercial and for-hire, to be 
small entities because they had average annual receipts of less than 
their respective sector's standard of $11 million and $14 million. As 
of October 2022, there are 2,630 General category permit holders and 
4,175 HMS Charter/Headboat permit holders, of which 1,873 hold HMS 
Charter/Headboat permits with a commercial sale endorsement.
    Section 603(b)(4) of the RFA requires agencies to describe any new 
reporting, record-keeping, and other compliance requirements. This 
proposed rule does not contain any new collection of information, 
reporting, or record-keeping requirements. This proposed rule would 
modify the process of scheduling RFDs, set a schedule of RFDs for 2024 
fishing year and subsequent fishing years, reestablish a General 
category default retention limit for BFT on open days (i.e., non-RFDs), 
and make modifications to the HMS dealer regulations to clarify dealer 
and dealer agent activities on RFDs.
    Under section 603(b)(5) of the RFA, agencies must identify, to the 
extent practicable, relevant Federal rules which duplicate, overlap, or 
conflict with the proposed action. Fishermen, dealers, and managers in 
these fisheries must comply with a number of international agreements, 
domestic laws, and other fishery management measures. These include, 
but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas 
Fishing Compliance Act, the Marine Mammal Protection Act, the 
Endangered Species Act, the National Environmental Policy Act, the 
Paperwork Reduction Act, and the Coastal Zone Management Act. This 
proposed action has been determined not to duplicate, overlap, or 
conflict with any Federal rules.
    Under section 603(c) of the RFA, agencies must describe any 
significant alternatives to the proposed rule which accomplish the 
stated objectives of applicable statutes and which minimize any 
significant economic impact of the proposed rule on small entities. 
Specifically, the RFA (5 U.S.C. 603(c)(1) through (4)) lists four 
general categories of significant alternatives to assist an agency in 
the development of significant alternatives. These categories of 
alternatives are: (1) establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) clarification, 
consolidation, or simplification of compliance and reporting 
requirements under the rule for such small entities; (3) use of 
performance rather than design standards; and (4) exemptions from 
coverage of the rule, or any part thereof, for small entities.
    Regarding the first, second, and fourth categories, NMFS cannot 
establish differing compliance or reporting requirements for small 
entities or exempt small entities from coverage of the rule or parts of 
it because all of the businesses impacted by this rule are considered 
small entities, and thus the requirements are already designed for 
small entities. Regarding the third category, NMFS does not know of any 
performance or design standards that would satisfy the aforementioned 
objectives of this rulemaking. As described below, NMFS analyzed 
several different alternatives in this proposed rulemaking and provides 
rationales for identifying the preferred alternatives to achieve the 
desired objectives. NMFS did not develop alternatives for the 
regulatory clarifications of dealer activities on RFDs. The effects of 
these changes are primarily administrative and no environmental or 
economic effects are anticipated.
    The alternatives considered and analyzed are described below. The 
IRFA assumes that each vessel will have similar catch and gross 
revenues to show the relative impact of the proposed action on vessels.
    Under Alternative A, the status-quo alternative, NMFS would 
maintain the status quo and, as needed, would conduct annual rulemaking 
for RFDs. The average annual revenue for BFT landed in the General 
category is approximately $9.9 million based on the average ex-vessel 
price from 2018 through 2022 and adjusted for inflation using the GDP 
Deflator. Overall, RFDs do not modify the General category quota and 
are designed to extend fishing opportunities through a greater 
proportion of the time periods in which they apply by spreading fishing 
effort out over time. To the extent that the ex-vessel revenue for a 
BFT sold by a General or HMS Charter/Headboat permitted vessel (with a 
commercial endorsement) may be higher when a lower volume of 
domestically caught BFT is on the market at one time, the use of RFDs 
may result in some short-term increase in BFT prices, and the value of 
BFT for the applicable General category time periods could increase. 
These increases in price are unlikely to impact the overall average 
annual revenue. NMFS expects this status quo alternative would have 
neutral economic impacts as it does not expect this alternative to have 
new economic impacts on small entities participating in the fishery.
    Under Alternative B, which NMFS is considering as four sub-
alternatives (B1 is the preferred alternative), NMFS would modify the 
process for setting an RFD schedule. Under this alternative, NMFS would 
no longer conduct an annual rulemaking to set an RFD schedule but would 
codify the General category time periods and days in which RFDs would 
be applied. NMFS may waive these scheduled RFDs for the specific time 
periods and days on which they apply by adjusting the daily BFT 
retention limit from zero up to five after considering the criteria at 
Sec.  635.27(a)(7). NMFS also may waive previously designated RFDs 
effective upon closure of the General category fishery so that persons 
aboard vessels permitted in the General category may conduct only tag-
and-release fishing for BFT under Sec.  635.26(a). Codification of RFDs 
would provide greater certainty and predictability than annual RFD 
rulemaking, providing some positive economic impacts to General 
category participants and dealers in terms of business planning. As 
stated above, the average annual revenue for BFT landed in the General 
category is approximately $9.9 million based on the average ex-vessel 
price from 2018 through 2022 and adjusted for inflation using the GDP 
Deflator. To the extent that the ex-vessel revenue for a BFT sold by a 
General or HMS Charter/Headboat permitted vessel with a commercial 
endorsement may be higher when a lower volume of domestically caught 
BFT is on the market at one time, the use of RFDs may result in some 
short-term increase in BFT prices, and the value of BFT for the 
applicable General category time periods could increase.
    As part of Alternative B, NMFS is considering four sub alternatives 
specifying different days of the week when RFDs would take place to the 
RFD schedule for 2024 and subsequent years. In general, three of the 
sub alternatives (B1, B2, B3) have similar economic impacts because 
they establish the same number of RFDs and RFDs do not modify the 
General category quota and are designed to extend fishing opportunities 
through a greater proportion of the time periods in which they apply by 
spreading fishing effort out over time. To the extent that the ex-

[[Page 13672]]

vessel revenue for a BFT sold by a General or HMS Charter/Headboat 
permitted vessel with a commercial endorsement may be higher when a 
lower volume of domestically caught BFT is on the market at one time, 
the use of RFDs may result in some short-term increase in BFT prices, 
and the value of the General category time period subquotas could 
increase.
    Under Alternative B1, the preferred alternative, NMFS would codify 
a 3-day-per-week RFD schedule for every Tuesday, Friday, and Saturday 
from July 1 through November 30. This sub alternative could have 
neutral to minor beneficial economic impacts on small entities 
participating in the fishery beyond those currently occurring because 
of the ability to plan provided by the schedule of RFDs, but these 
short-term increases in price are unlikely to impact the overall 
average annual revenue.
    Under Alternative B2, NMFS would codify a 3-day-per-week RFD 
schedule for every Thursday, Friday, and Saturday from July 1 through 
November 30. This sub alternative could have neutral to minor adverse 
economic impacts on small entities participating in the fishery as four 
consecutive landings days could increase the influx of BFT products 
into the market resulting in a short-term decrease in ex-vessel prices 
and revenues for General category participants. This short-term 
decrease in BFT prices are unlikely to impact the overall average 
annual revenue.
    Under Alternative B3, NMFS would codify a 3-day-per-week RFD 
schedule for every Friday, Saturday, and Sunday from July 1 through 
November 30. This sub-alternative could have neutral to minor adverse 
economic impacts on small entities participating in the fishery as RFDs 
for an entire weekend could negatively impact General category 
participants who can only commercially fish on the weekends. Many 
participants are known to work in other sectors on weekdays and are 
only available to fish part-time on weekends. Additionally allowing 
four consecutive landing days could increase the influx of BFT products 
into the market resulting in a short-term decrease in ex-vessel prices 
and revenues for General category participants. This short-term 
decrease in BFT prices are unlikely to impact the overall average 
annual revenue.
    Under Alternative B4, NMFS would codify a 4-day (or more)-per-week 
RFD schedule. This sub alternative could have minor adverse to adverse 
economic impacts on small entities participating in the General 
category fishery as four or more RFDs could, rather than extending 
fishing opportunities, actually limit opportunities for General 
category participants to land the quota and subquotas resulting in 
derby-like conditions. This derby-like effect could lead to an influx 
of BFT products into the market that could result in a decrease in ex-
vessel prices and revenues for General category participants, which may 
negatively impact overall average revenue. In addition, variable 
weather conditions where General category participants may be unable to 
take advantage of more limited open days may lead to an underharvest of 
the General category quota and subquotas, and underutilization of the 
available fishery resource.
    Under Alternative C, NMFS would remove RFDs from the existing HMS 
regulations and no longer set RFDs for the General category. As stated 
earlier in this document, the goal of RFDs are to extend General 
category fishing opportunities through a greater portion of the General 
category time periods. Without RFDs, high catch rates early in each 
time period would prompt NMFS to prematurely close the General category 
because the quota has been reached, even though fish may still be 
available on fishing grounds. This premature closure would mean 
commercial fishermen operating under the General category could not 
fish for, possess, retain, or sell commercial sized fish. To the extent 
that the ex-vessel revenue for a BFT sold by a General or HMS Charter/
Headboat permitted vessel (with a commercial endorsement) may be higher 
when a lower volume of domestically caught BFT is on the market at one 
time, the use of RFDs may result in some short-term increase in BFT 
prices, and the value of the General category time period subquotas 
could increase. This alternative could have neutral to minor adverse 
economic impacts on small entities participating in the fishery. 
General category participants would likely land the subquotas over an 
extremely short time period increasing the influx of BFT products into 
the market, potentially resulting not only in an earlier closure of the 
fishery but also a slight decrease in ex-vessel prices and revenues for 
General category participants which may negatively impact overall 
average revenue.
    Under Alternative D1, the status-quo alternative, NMFS would 
maintain the current regulations at Sec.  635.23(a)(3) which do not 
establish a default retention limit on open days (i.e., non-RFDs) when 
the General category is open. Under this alterative NMFS may set the 
General category default daily retention limit for large medium or 
giant BFT over a range of zero (on RFDs) to five BFT per vessel for 
each time period in an action published in the Federal Register. The 
daily retention limit would apply to General category permitted vessels 
and HMS Charter/Headboat permitted vessels with a commercial sale 
endorsement when fishing commercially for BFT. Overall, the use of 
retention limits would likely have neutral to minor beneficial economic 
impacts on small entities participating in the General category fishery 
as they could extend the length of the General category time periods 
when BFT can be landed, providing additional fishing opportunities 
while also reducing the influx of BFT products into the market which 
could result in a short-term increase in ex-vessel prices for General 
category participants. This short-term increase in BFT prices are 
unlikely to impact the overall average annual revenue. NMFS expects the 
status-quo alternative to have neutral economic impacts as it does not 
change existing management.
    Under Alternative D2, NMFS would establish a General category 
default daily retention limit of one large medium or giant BFT per 
vessel on days when the General category is open. The daily retention 
limit would apply to General category permitted vessels and HMS 
Charter/Headboat permitted vessels with a commercial sale endorsement 
when fishing commercially for BFT. Retention limits would likely have 
neutral to minor beneficial economic impacts on small entities 
participating in the General category fishery as they could extend the 
length of the General category time periods when BFT can be landed, 
providing additional fishing opportunities while also reducing the 
influx of BFT products into the market which could result in a short-
term increase in ex-vessel prices for General category participants. 
However, since the current practice in recent years is to set a daily 
retention limit of three large medium or giant BFT per vessel on days 
when the General category is open, starting June 1 through June 30, a 
default of one BFT could potentially constrain the revenue of vessels 
that might have been able to land two or three BFT on open days from 
June 1 through June 30. Although this alternative may have a short-term 
minor adverse impact on a limited number of individuals and their 
revenues (likely resulting in a short-term decrease in ex-vessel 
prices), NMFS expects that the

[[Page 13673]]

overall average annual revenue would unlikely be impacted.
    Under Alternative D3, the preferred alternative, NMFS would 
establish a General category daily retention limit of three large 
medium or giant BFT per vessel on open days in June and one large 
medium or giant BFT on days during all other months when the fishery is 
open (i.e., January through March and July through December; the 
General category BFT fishery is not open during the months of April and 
May) unless adjusted with an inseason action. The daily retention limit 
would apply to General category permitted vessels and HMS Charter/
Headboat permitted vessels with a commercial sale endorsement when 
fishing commercially for BFT. Retention limits would likely have 
neutral to minor beneficial economic impacts on small entities 
participating in the General category fishery as retention limits could 
extend the length of the General category time periods when BFT can be 
landed, providing additional fishing opportunities while also reducing 
the influx of BFT products into the market which could result in an 
increase in a short-term increase ex-vessel prices for General category 
participants. Implementation of these default retention limits would 
align with current management practices and provide additional fishing 
opportunities in all respective time periods. Codifying the current 
retention limits management practices would potentially reduce some 
uncertainty regarding future retention limits for General category 
participants and dealers and thus lead to some positive economic 
impacts associated with their improved business planning. NMFS expects 
that the overall average annual revenue would be unlikely to be 
impacted.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 635

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

    Dated: February 15, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 635 as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

    Authority:  16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
2. In Sec.  635.2, revise the definition for ``BSD tag'' to read as 
follows:


Sec.  635.2  Definitions.

* * * * *
    Bluefin statistical document (BSD) tag means a numbered tag affixed 
to a BFT issued by any country in conjunction with a catch statistics 
information program and recorded on a BSD.
* * * * *
0
3. In Sec.  635.5, revise paragraph (b)(2)(ii)(A) to read as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (b) * * *
    (2) * * *
    (ii) * * *
    (A) Affixing dealer tags. A dealer or a dealer's agent must affix a 
dealer tag to each BFT purchased or first received from a U.S. vessel 
immediately upon offloading the BFT. A dealer's agent is a person who 
is currently employed by a place of business covered by the dealer's 
permit; is a primary participant in the identification, weighing, and/
or first receipt of fish as they are received; and fills out dealer 
reports as required under Sec.  635.5. If a vessel is placed on a 
trailer, the dealer or dealer's agent must affix the dealer tag to the 
BFT immediately upon the vessel being removed from the water. The 
dealer tag must be affixed to the BFT between the fifth dorsal finlet 
and the caudal keel. Regardless of when the BFT was landed, on an RFD 
(as specified at Sec.  635.23(a)), no dealer or dealer's agent shall 
purchase, first receive, or affix a dealer tag to a BFT that is on or 
from a vessel that has an Atlantic Tunas General category permit or HMS 
Charter/Headboat permit with a commercial sale endorsement.
* * * * *
0
4. In Sec.  635.23, revise paragraphs (a) and (c)(3) to read as 
follows:


Sec.  635.23  Retention limits for bluefin tuna.

* * * * *
    (a) General category.
    (1) No school, large school, or small medium size class BFT may be 
possessed, retained, landed, or sold on or from a vessel that has an 
Atlantic Tunas General category permit.
    (2) The following default daily retention limits apply to vessels 
that have an Atlantic Tunas General category permit or HMS Charter/
Headboat permit with a commercial sale endorsement fishing under the 
General category restrictions and retention limits when the General 
category is open and the day is not an RFD and the retention limit has 
not been adjusted per paragraph (a)(3) of this section.
    (i) January 1 through March 31--one large medium or giant BFT, per 
vessel per day;
    (ii) June 1 through June 30--three large medium or giant BFT per 
vessel per day; and
    (iii) July 1 through December 30--one large medium or giant BFT per 
vessel per day.
    (3) To provide for maximum utilization of the quota for BFT, NMFS 
may adjust the daily retention limit of large medium or giant BFT over 
a range from zero (on RFDs) to a maximum of five per vessel per the 
inseason criteria provided under Sec.  635.27(a)(7).
    (4) Regardless of the length of trip, no person may land, possess, 
or retain more than the daily retention limit in effect for that day. 
When the applicable retention limit for large medium or giant BFT has 
been reached, no person aboard such vessels may continue to fish, and 
the vessel must immediately proceed to port.
    (5) From July 1 through November 30 of each year, every Tuesday, 
Friday, and Saturday is an RFD unless waived per paragraph (a)(7) of 
this section. On an RFD, no person who has been issued an Atlantic 
Tunas General category permit or issued an HMS Charter/Headboat permit 
and fishing commercially may fish for, possess, retain, land, or sell a 
BFT of any size class; or catch and release or tag and release, as 
specified under Sec.  635.26(a), a BFT of any size class.
    (6) NMFS may remove or establish additional designated RFDs, as 
appropriate, following public comment via publication in the Federal 
Register.
    (7) Designated RFDs may be waived in the following circumstances.
    (i) If the General category fishery is closed under Sec.  
635.28(a), any remaining RFDs for the relevant time period(s) are 
waived so that persons aboard vessels issued an Atlantic Tunas General 
category permit may conduct tag-and-release for BFT under Sec.  
635.26(a).
    (ii) If, based on the criteria at Sec.  635.27(a)(7), NMFS 
determines that RFDs are not necessary, NMFS may waive RFDs by 
increasing the daily retention limit per paragraph (a)(3) for a 
specific time period(s) via publication in the Federal Register.
* * * * *
    (c) * * *
    (3) When fishing other than in the Gulf of Mexico when the General

[[Page 13674]]

category fishery is open and no RFD is in effect, a person aboard a 
vessel that has been issued an HMS Charter/Headboat permit with a 
commercial sale endorsement may fish under either the General category 
restrictions and retention limits as specified in paragraphs (a)(1) 
through (2) and paragraphs (4) through (5) of this section or the 
Angling category restrictions and retention limits as specified in 
paragraphs (b)(1) through (3) of this section. The size category of the 
first BFT retained will determine whether the General category or 
Angling category restrictions and retention limits apply to the vessel 
that day.
* * * * *
0
5. In Sec.  635.31, revise paragraph (a)(1) and add paragraph 
(a)(2)(iii) to read as follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) * * *
    (1) A person who owns or operates a vessel from which an Atlantic 
tuna is landed or offloaded may sell such Atlantic tuna only if that 
vessel has a valid HMS Charter/Headboat permit with a commercial sale 
endorsement; a valid Atlantic Tunas General, Harpoon, Longline, or Trap 
category permit; or a valid HMS Commercial Caribbean Small Boat permit 
issued under this part and the appropriate category has not been closed 
as specified at Sec.  635.28(a). No person may sell a BFT smaller than 
the large medium size class. No large medium or giant BFT may be sold 
if caught by a person aboard a vessel with an Atlantic HMS Charter/
Headboat permit fishing in the Gulf of Mexico at any time or outside 
the Gulf of Mexico when the General category fishery has been closed 
(see Sec.  635.23(c)). A person may sell Atlantic BFT only to a dealer 
that has a valid permit for purchasing Atlantic tunas issued under this 
part. A person may not sell or purchase Atlantic tunas harvested with 
speargun fishing gear. A person issued an Atlantic Tunas General 
category permit or HMS Charter/Headboat permit with a commercial sale 
endorsement must land, sell or transfer a BFT to a dealer that has a 
valid permit for purchasing Atlantic tunas no later than 2400 local 
time the day prior to an RFD, as specified at Sec.  635.23(a). If that 
person is unable to sell or otherwise transfer the BFT to a dealer who 
has a dealer permit for Atlantic tunas no later than 2400, the person 
must follow the restrictions applicable to landed but not sold BFT 
specified at Sec.  635.5(a)(3). In no case shall such person possess a 
BFT on an RFD.
    (2) * * *
    (iii) Dealers may not first receive a BFT from a vessel that has a 
valid Atlantic Tunas General permit or HMS Charter/Headboat permit with 
a commercial sale endorsement after 0000 local time on an RFD, as 
specified at Sec.  635.23(a).
* * * * *
0
6. In Sec.  635.71, revise paragraphs (b)(13) and (29) to read as 
follows:


Sec.  635.71  Prohibitions

* * * * *
    (b) * * *
    (13) As a vessel with an Atlantic Tunas General category permit, 
fail to immediately cease fishing and immediately return to port after 
catching the applicable limit of large medium or giant bluefin tuna on 
a commercial fishing day, as specified in Sec.  635.23(a)(4).
* * * * *
    (29) As a dealer or dealer's agent, purchase, first receive, or 
affix a dealer tag to a BFT that is on or from a vessel that has been 
issued an Atlantic Tunas General category permit or HMS Charter/
Headboat permit with a commercial sale endorsement, as specified in 
Sec.  635.5(b)(2)(ii)(A) after 0000 local time on an RFD.
* * * * *
[FR Doc. 2024-03594 Filed 2-22-24; 8:45 am]
BILLING CODE 3510-22-P