Atlantic Highly Migratory Species; Bluefin Tuna General Category Effort Controls and Related Regulations, 13667-13674 [2024-03594]
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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules
under 25 U.S.C. 1915(c). Indicate ‘‘yes’’
or ‘‘no.’’ If the state title IV–E agency
indicated ‘‘yes,’’ then the state title IV–
E agency must indicate the basis for
good cause in paragraph (i)(13) of this
section. If the state title IV–E agency
indicated ‘‘no,’’ then the state title
IV–E agency must leave paragraph
(i)(13) blank.
(13) Basis for good cause, adoption. If
the state title IV–E agency indicated
‘‘yes’’ in paragraph (i)(16), indicate the
state court’s basis for determining good
cause to depart from ICWA adoptive
placement preferences by indicating
‘‘yes’’ or ‘‘no’’ in each paragraph
(i)(13)(i) through (v) of this section.
(i) Request of one or both of the
child’s parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable
placement after a determination by the
court that a diligent search was
conducted to find suitable placements
meeting the adoptive placement
preferences in ICWA at 25 U.S.C. 1915
but none has been located.
(iv) The extraordinary physical,
mental, or emotional needs of the Indian
child, such as specialized treatment
services that may be unavailable in the
community where families who meet
the adoptive placement preferences live.
(v) The presence of a sibling
attachment that can be maintained only
through a particular adoptive
placement.
[FR Doc. 2024–03373 Filed 2–22–24; 8:45 am]
BILLING CODE 4184–73–P
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
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AGENCY:
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
SUMMARY:
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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-categoryeffort-controls-and-clarify-relatedatlantic-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
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13667
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/atlantichighly-migratory-species or by
contacting Larry Redd, Jr., or Erianna
Hammond (see FOR FURTHER
INFORMATION CONTACT section).
FOR FURTHER INFORMATION CONTACT:
Larry Redd, Jr., larry.redd@noaa.gov, or
Erianna Hammond, erianna.hammond@
noaa.gov, 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 MagnusonStevens 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
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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
§ 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) (§ 635.
27(a)(1)(i)(A) through (E)).
BFT General Category RFDs
NMFS originally established
regulatory authority to set so-called ‘‘nofishing’’ 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
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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
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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/atlantichighly-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
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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 § 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-andrelease fishing for BFT under
§ 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
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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-dayper-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
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13669
General category default daily retention
limits as follows: maintain the current
regulations at § 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 (§ 635.5(b)). Under § 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
(§ 635.5(b)(2)(ii)). As defined under
§ 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,
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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 (§ 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
(§ 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 §§ 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 § 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
§§ 635.23(a) and 635.31(a) to
incorporate these clarifications. To
remain in compliance, NMFS
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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 § 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 § 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) (§ 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
§ 635.5. This interpretation of a dealer’s
agent is consistent with the description
of a dealer proxy under § 635.8(b)(4).
Finally, NMFS is clarifying the meaning
of ‘‘BSD’’ in the definition of a BSD tag
at § 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
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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)
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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 recordkeeping 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
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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 exvessel 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 shortterm increase in BFT prices, and the
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13671
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 § 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 tagand-release fishing for BFT under
§ 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 exvessel 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-
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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 shortterm 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 3day-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 exvessel 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 exvessel 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
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16:53 Feb 22, 2024
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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 § 635.23(a)(3)
which do not establish a default
retention limit on open days (i.e., nonRFDs) when the General category is
open. Under this alterative NMFS may
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Fmt 4702
Sfmt 4702
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 exvessel prices), NMFS expects that the
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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.
ddrumheller on DSK120RN23PROD with PROPOSALS1
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels,
Foreign relations, Imports, Penalties,
Reporting and recordkeeping
requirements, Statistics, Treaties.
Jkt 262001
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C.
1801 et seq.
2. In § 635.2, revise the definition for
‘‘BSD tag’’ to read as follows:
■
§ 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.
*
*
*
*
*
■ 3. In § 635.5, revise paragraph
(b)(2)(ii)(A) to read as follows:
§ 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 § 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 § 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.
*
*
*
*
*
■ 4. In § 635.23, revise paragraphs (a)
and (c)(3) to read as follows:
Retention limits for bluefin tuna.
*
For the reasons set out in the
preamble, NMFS proposes to amend 50
CFR part 635 as follows:
16:53 Feb 22, 2024
1. The authority citation for part 635
continues to read as follows:
■
§ 635.23
Dated: February 15, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
VerDate Sep<11>2014
PART 635—ATLANTIC HIGHLY
MIGRATORY SPECIES
*
*
*
*
(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
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13673
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 § 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 § 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 § 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-andrelease for BFT under § 635.26(a).
(ii) If, based on the criteria at
§ 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
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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.
*
*
*
*
*
■ 5. In § 635.31, revise paragraph (a)(1)
and add paragraph (a)(2)(iii) to read as
follows:
ddrumheller on DSK120RN23PROD with PROPOSALS1
§ 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 § 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 § 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 § 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 § 635.5(a)(3). In no case
shall such person possess a BFT on an
RFD.
(2) * * *
VerDate Sep<11>2014
16:53 Feb 22, 2024
Jkt 262001
(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
§ 635.23(a).
*
*
*
*
*
■ 6. In § 635.71, revise paragraphs
(b)(13) and (29) to read as follows:
50 CFR Part 648
management measures that allow the
recreational fisheries to achieve, but not
exceed, the recreational harvest targets
and thereby prevent overfishing.
DATES: Comments must be received by
March 11, 2024.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2024–0020 by the following
method:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov and type
NOAA–NMFS–2024–0020 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.
Instructions: Comments sent by any
other method, to any other address or
individual or received after the end 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).
FOR FURTHER INFORMATION CONTACT:
Emily Keiley, Fishery Policy Analyst,
(978) 281–9116, or Emily.Keiley@
noaa.gov.
[Docket No. 240214–0048]
SUPPLEMENTARY INFORMATION:
RIN 0648–BM83
Background
§ 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
§ 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 § 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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Fisheries of the Northeastern United
States; 2024 and 2025 Summer
Flounder and Scup, and 2024 Black
Sea Bass Recreational Management
Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes Federal
management measures for the summer
flounder and black sea bass recreational
fisheries. The implementing regulations
for these fisheries require NMFS to
publish recreational measures for the
fishing year and to provide an
opportunity for public comment. The
intent of this action is to set
SUMMARY:
PO 00000
Frm 00055
Fmt 4702
Sfmt 4702
The Mid-Atlantic Fishery
Management Council (Council) and the
Atlantic States Marine Fisheries
Commission (Commission)
cooperatively manage summer flounder,
scup, and black sea bass. The Council
and the Commission’s Management
Boards meet jointly each year to
recommend recreational management
measures. For summer flounder and
black sea bass, NMFS must implement
coastwide measures or approve
conservation-equivalent measures per
50 CFR 648.102(d) and 648.142(d), as
soon as possible following the Council
and Commission’s recommendation.
This action proposes establishing
conservation equivalency (i.e., waiving
Federal recreational management
measures) for both species in 2024 and
for summer flounder in 2025. For scup,
no adjustments to the Federal
E:\FR\FM\23FEP1.SGM
23FEP1
Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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