Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Rules and Regulations 43421 

establishing these quotas and subquotas 

and associated management measures, 

ICCAT and NMFS considered the best 

scientific information available, 

objectives for stock management and 

status, and effects on the stock. This 

quota transfer is in line with the 

established management measures and 

stock status determinations. Another 

principal consideration is the objective 

of providing opportunities to harvest the 

available Harpoon category quota 

without exceeding the annual quota, 

based on the objectives of the 2006 

Consolidated HMS FMP and 

amendments, including to achieve 

optimum yield on a continuing basis 

and to optimize the ability of all permit 

categories to harvest available BFT 

quota allocations (related to 

§ 635.27(a)(8)(x)). 

Given these considerations, NMFS is 

transferring 30 mt of the available 168 

mt of Reserve category quota to the 

Harpoon category. Therefore, NMFS 

adjusts the Harpoon category quota to 

76 mt for the 2021 Harpoon category 

fishing season (i.e., through November 

15, 2021, or until the Harpoon category 

quota is reached, whichever comes 

first), and adjusts the Reserve category 

quota to 138 mt. 

Monitoring and Reporting 

NMFS will continue to monitor the 

BFT fishery closely. Dealers are required 

to submit landing reports within 24 

hours of a dealer receiving BFT. Late 

reporting by dealers compromises 

NMFS’ ability to timely implement 

actions such as quota and retention 

limit adjustments, as well as closures, 

and may result in enforcement actions. 

Additionally, and separate from the 

dealer reporting requirement, Harpoon 

category vessel owners are required to 

report their own catch of all BFT 

retained or discarded dead within 24 

hours of the landing(s) or end of each 

trip, by accessing hmspermits.noaa.gov 

or by using the HMS Catch Reporting 

app, or calling (888) 872–8862 (Monday 

through Friday from 8 a.m. until 4:30 

p.m.). 

Depending on the level of fishing 

effort and catch rates of BFT, NMFS 

may determine that additional 

adjustments are necessary to ensure 

available quota is not exceeded or to 

enhance scientific data collection from, 

and fishing opportunities in, all 

geographic areas. If needed, subsequent 

adjustments will be published in the 

Federal Register. In addition, fishermen 

may call the Atlantic Tunas Information 

Line at (978) 281–9260, or access 

hmspermits.noaa.gov, for updates on 

quota monitoring and inseason 

adjustments. 

Classification 

NMFS issues this action pursuant to 

section 305(d) of the Magnuson-Stevens 

Act. This action is required by 50 CFR 

635.27(a)(9) (inseason adjustments), 

which was issued pursuant to section 

304(c), and is exempt from review under 

Executive Order 12866. 

The Assistant Administrator for 

NMFS (AA) finds that it is impracticable 

and contrary to the public interest to 

provide prior notice of, and an 

opportunity for public comment on, this 

action for the following reasons: 

The regulations implementing the 

2006 Consolidated HMS FMP and 

amendments provide for inseason 

retention limit adjustments to respond 

to the unpredictable nature of BFT 

availability on the fishing grounds, the 

migratory nature of this species, and the 

regional variations in the BFT fishery. 

Affording prior notice and opportunity 

for public comment to implement the 

quota transfer for the remainder of 2021 

is also contrary to the public interest as 

such a delay would likely result in 

closure of the Harpoon fishery when the 

baseline quota is met and the need to reopen the fishery, with attendant 

administrative costs and costs to the 

fishery. The delay would preclude the 

fishery from harvesting BFT that are 

available on the fishing grounds and 

that might otherwise become 

unavailable during a delay. This action 

does not raise conservation and 

management concerns. Transferring 

quota from the Reserve category to the 

Harpoon category does not affect the 

overall U.S. BFT quota, and available 

data show the adjustment would have a 

minimal risk of exceeding the ICCATallocated quota. NMFS notes that the 

public had an opportunity to comment 

on the underlying rulemakings that 

established the U.S. BFT quota and the 

inseason adjustment criteria. For the 

same reasons discussed above, the AA 

finds good cause under 5 U.S.C. 

553(b)(B) to waive prior notice and the 

opportunity for public comment. 

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

et seq. 

Dated: August 3, 2021. 

Jennifer M. Wallace, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2021–16888 Filed 8–4–21; 4:15 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 210730–0155] 

RIN 0648–BK37 

Atlantic Highly Migratory Species; 

General Category Restricted-Fishing 

Days 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule sets Atlantic 

bluefin tuna (BFT) General category 

restricted-fishing days (RFDs) for the 

2021 fishing year; clarifies the 

regulations regarding applicability of 

RFDs to Highly Migratory Species 

(HMS) Charter/Headboat permitted 

vessels; and corrects references to the 

Atlantic Tunas General category permit 

in a section of the Atlantic HMS 

regulations. This final rule establishes 

RFDs for specific days during the 

months of September through November 

2021. On an RFD, Atlantic Tunas 

General category permitted vessels may 

not fish for (including catch-and-release 

or tag-and-release fishing), possess, 

retain, land, or sell BFT. On RFDs, 

persons aboard HMS Charter/Headboat 

permitted vessels with a commercial 

sale endorsement are prohibited from 

fishing commercially for BFT. Persons 

aboard all HMS Charter/Headboat 

permitted vessels can fish recreationally 

for BFT under the applicable Angling 

category restrictions and retention 

limits. 

DATES: This final rule is effective on 

August 9, 2021. 

ADDRESSES: Copies of this rule and 

supporting documents, including the 

Final Regulatory Flexibility Analysis 

(FRFA) for this action, are available 

from the HMS Management Division 

website at https://

www.fisheries.noaa.gov/topic/atlantichighly-migratory-species or by 

contacting Larry Redd at larry.redd@

noaa.gov or 301–427–8503. 

FOR FURTHER INFORMATION CONTACT: 

Larry Redd, Jr., larry.redd@noaa.gov, 

301–427–8503, or Sarah McLaughlin, 

sarah.mclaughlin@noaa.gov, 978–281– 

9260. 

SUPPLEMENTARY INFORMATION: Atlantic 

HMS fisheries, including BFT fisheries, 

are managed under the authority of the 

Atlantic Tunas Convention Act (ATCA; 


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16 U.S.C. 971 et seq.) and the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act; 16 U.S.C. 1801 

et seq.). The 2006 Consolidated Atlantic 

HMS Fishery Management Plan (2006 

Consolidated HMS FMP) and its 

amendments are implemented by 

regulations at 50 CFR part 635. Section 

635.27 divides the U.S. BFT quota, 

recommended by the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT) and as 

implemented by the United States, 

among the various domestic fishing 

categories per the allocations 

established in the 2006 Consolidated 

HMS FMP and its amendments. Among 

other restrictions and retention limits, 

section 635.23 specifies the retention 

limit provisions for Atlantic Tunas 

General category permitted vessels and 

HMS Charter/Headboat permitted 

vessels, including those applicable to 

persons aboard such permitted vessels 

on RFDs and on days other than RFDs. 

Background 

Specific information regarding RFDs, 

requests for their resumed use, the 

current U.S. quota and General category 

subquotas, and the need to clarify the 

regulations regarding the applicability 

of RFDs to HMS Charter/Headboat 

permitted vessels, was provided in the 

preamble to the proposed rule (86 FR 

25992, May 12, 2021) and is not 

repeated here. 

As described in the proposed rule, 

NMFS undertook this rulemaking to 

address and avoid repetition of certain 

issues that affected the General category 

BFT fishery in 2019 and 2020 and 

earlier. These issues include the 

shortened time to fish under the General 

category subquotas that occurs when the 

quota is filled quickly, increasing 

numbers of BFT that are landed but not 

sold to dealers because of market gluts, 

and the resulting decreased price of 

BFT. 

The comment period for the proposed 

rule closed on June 11, 2021. NMFS 

received 67 written comments, 

including comments from commercial 

and recreational fishermen, Atlantic 

tuna dealers, and the general public, as 

well as oral comments at a public 

webinar and at the HMS Advisory Panel 

meeting and public comment sessions at 

that meeting. The comments received, 

and responses to those comments, are 

summarized below in the Response to 

Comments section. 

After considering public comments on 

the proposed rule in light of the 

management goals of this action, NMFS 

decided to implement the RFD schedule 

as proposed (except for changing the 

start date of the first RFD to account for 

the date of publication of this final rule). 

Compared to the fishery in 2019 and 

2020, implementing RFDs should slow 

the rate of landings and extend fishing 

opportunities for General category 

permit holders through a greater portion 

of the subquota periods while also 

addressing the issues mentioned above. 

As such, this final rule establishes RFDs 

for the 2021 BFT fishing year for the 

General category and makes minor 

revisions in the HMS regulations at 50 

CFR part 635. As described below, 

except for changing the start date of the 

first RFD to account for the date of 

publication of this final rule, no changes 

were made from the proposed rule. 

Implementing this RFD schedule, with 

the ability to waive scheduled RFDs, 

would slow the rate of landings to 

provide available quota throughout a 

longer duration of the General category 

subquota periods while providing 

reasonable fishing opportunities, 

including some fishing tournament 

opportunities, for all General category 

participants. 

Specifically, NMFS sets RFDs for the 

2021 fishing year on the following days: 

All Tuesdays, Fridays, and Saturdays 

from September 3 through November 

30, 2021. On an RFD, Atlantic Tunas 

General category permitted vessels are 

prohibited from fishing for (including 

catch-and-release and tag-and-release 

fishing), possessing, retaining, landing, 

or selling BFT. On these designated 

RFDs, persons aboard HMS Charter/ 

Headboat permitted vessels with a 

commercial sale endorsement also are 

prohibited from fishing commercially 

for BFT. Persons aboard all HMS 

Charter/Headboat permitted vessels can 

fish recreationally for BFT under the 

applicable Angling category restrictions 

and retention limits. 

NMFS may waive previously 

scheduled RFDs under certain 

circumstances. Consistent with 

§ 635.23(a)(4), NMFS may waive an RFD 

by adjusting the daily BFT retention 

limit from zero up to five on specified 

RFDs, after considering the inseason 

adjustment determination criteria at 

§ 635.27(a)(8). This would include, 

among other things, review of dealer 

reports, daily landing trends, and the 

availability of BFT on fishing grounds. 

NMFS will announce any such waiver 

by filing a retention limit adjustment 

with the Office of the Federal Register 

for publication. Such adjustments will 

be effective no less than 3 calendar days 

after the date of filing for public 

inspection with the Office of the Federal 

Register. NMFS also may waive 

previously designated RFDs effective 

upon closure of the General category 

fishery so that persons aboard vessels 

permitted in the General category may 

conduct tag-and-release fishing for BFT 

as allowable under § 635.26(a). 

However, should NMFS waive 

previously designated RFDs while the 

General category fishery is open, 

persons aboard vessels permitted in the 

General category may conduct catch and 

release or tag-and-release fishing for 

BFT as allowable under § 635.26(a). 

NMFS will not modify RFDs set by this 

final rule during the fishing year in 

other ways (such as changing an RFD 

from one date to another or adding 

RFDs) other than waiving designated 

RFDs based on the circumstances 

described above. 

This final rule also clarifies existing 

regulatory text at § 635.23(c) about the 

applicability of RFDs to HMS Charter/ 

Headboat permitted vessels, and makes 

a minor change to correct two permit 

title references in § 635.23 of the 

regulations. 

Response to Comments 

All written comments can be found at 

www.regulations.gov by searching for 

NOAA–NMFS–2021–0040. Below, 

NMFS summarizes and responds to all 

comments made specifically on the 

proposed rule during the comment 

period. 

Comment 1: NMFS received 

comments from General category 

fishermen, charter/headboat fishermen, 

and tournament operators both in 

support of and in opposition to General 

category RFDs for the 2021 fishing year. 

Most commenters in support of 

resuming the use of RFDs noted that 

RFDs should prevent market gluts and 

should lengthen the General category 

season within the subquota time-periods 

and the season overall. These 

commenters felt that lengthening the 

season into the fall/winter months when 

BFT are of better quality would result in 

higher prices for fishermen. Other 

commenters expressed concern that the 

proposed rule seemed to be economic in 

nature and would inappropriately 

manipulate the market. Additionally, 

several commenters opposed to RFDs 

expressed concern that this action is 

premature due to the unique impacts of 

COVID–19 in 2020, noting that global 

markets and economies are stabilizing 

and similar impacts should not be 

expected in 2021. Furthermore, some 

commenters expressed concern that 

RFDs would not result in extending the 

fishery, but instead would lead to a 

derby fishery resulting in flooded 

markets, lower BFT prices, and safetyat-sea concerns associated with fishing 

in bad weather conditions. 


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Response: RFDs can slow the rate of 

General category landings and extend 

fishing opportunities through a greater 

portion of the General category timeperiod subquotas. This final rule is not 

driven by purely economic-related 

objectives. The primary objective of the 

final rule is to slow the harvest rate of 

BFT in order to extend the period of 

time that the fishery may remain open 

to provide fishing opportunities longer 

in the season. The proposed rule did 

discuss past market conditions and 

recognized that this action should also 

help prevent large numbers of BFT from 

entering the market at the same time, 

and would potentially alleviate some 

negative economic impacts experienced 

by General category and Charter/ 

Headboat permitted fishermen who 

could not find buyers for their BFT. 

This was not the primary objective of 

the rule, however. The primary 

objective of this action is to slow the 

rate of General category landings to 

extend fishing opportunities through a 

greater portion of the subquota periods. 

NMFS notes that BFT prices generally 

increase over the summer and fall 

period. NMFS acknowledges the unique 

impacts of COVID–19 in 2020; however, 

NMFS has observed the issues that 

contribute to the need for this action for 

several years, and those issues were 

exacerbated in both 2019 and 2020. 

Specifically, over the past several years, 

landings have been highest from midAugust through November, contributing 

to derby-like conditions, contributing to 

market gluts, shortening the time it 

takes to fill relevant subquotas, and 

resulting in inseason closures earlier 

than desired. If NMFS does not take 

action this year, it is likely these trends 

would continue. Overall, NMFS 

believes that by spreading out fishing 

effort over a longer period of time, 

safety-at-sea issues should decrease, as 

the conditions that encourage derby-like 

behavior would be diminished. NMFS 

recognizes that the weather is 

unpredictable, particularly in the 

second half of October and early 

November, and that poor weather may 

limit participation without the need for 

additional RFDs during this part of the 

season. Should BFT landings and catch 

rates merit waiving RFDs, NMFS could 

adjust the daily retention limit on 

waived days with a minimum 3-day 

notification to fishermen, by filing such 

an adjustment in the Federal Register, 

under 50 CFR 635.23(a)(4). 

Comment 2: NMFS received 

comments both supporting the proposed 

Tuesday, Friday, and Saturday schedule 

of RFDs, and opposing the proposed 

schedule. Some commenters suggested 

modifications to the proposed schedule, 

including implementing RFDs earlier in 

June and/or avoiding weekends. One 

commenter objected to the proposed 

RFD schedule while also suggesting to 

start RFDs in September. Some 

commenters noted that Fridays and 

Saturdays are the days on which the 

demand to buy and sell BFT is greatest. 

Response: NMFS’ proposed schedule 

of RFDs was based on a review of 

average daily catch rate data for recent 

years and a review of past years’ RFD 

schedules and how they worked to 

extend the use of the General category 

quota. The Tuesday, Friday, and 

Saturday RFD schedule allows for twoconsecutive-day periods twice each 

week (Sunday–Monday; Wednesday– 

Thursday) for General category and 

Charter/Headboat permitted vessels 

with a commercial sale endorsement to 

fish for and sell BFT. NMFS believes 

that two-consecutive-day periods twice 

each week would allow BFT products to 

move through the market while also 

allowing some commercial fishing 

activity to occur each weekend (i.e., 

Sundays). Given that the proposed rule 

published in May, and the comment 

period ended on June 11, 2021, NMFS 

could not implement RFDs starting June 

1, 2021. However, NMFS is establishing 

RFDs starting in September, when catch 

and landing rates substantially increase, 

resulting in General category subquotas 

being met and closures of applicable 

General category time-periods. 

NMFS recognizes that many General 

category fishery participants would like 

to maintain the opportunity to fish and 

sell on Fridays and weekends. However, 

NMFS selected Tuesdays, Fridays, and 

Saturdays based on input from Atlantic 

tunas dealers, General category 

participants, and members of the 

Atlantic HMS Advisory Panel. NMFS 

believes that this weekly schedule of 

RFDs should increase the likelihood of 

pacing General category landings to 

extend fishing opportunities through a 

greater portion of the subquota periods 

(similar to some past RFD schedules 

that applied in previous fishing years). 

It would also allow for two-consecutiveday periods twice each week (Sunday– 

Monday; Wednesday–Thursday) for 

BFT product to move through the 

market and also allow for some 

commercial fishing activity each 

weekend (i.e., Sunday). 

Comment 3: NMFS received several 

comments from General category and 

Charter/Headboat captains expressing 

support for this action, noting that RFDs 

allow Charter/Headboat captains the 

opportunity to sell fish on non-RFD 

days and to continue to charter on RFD 

days (i.e., under the Angling category 

regulations). These captains noted that 

recreational trips potentially will have 

higher catch rates as vessels can fish 

without having to compete with 

commercial fishing vessels. 

Response: As described in the 

proposed rule, resuming RFDs will 

allow persons aboard Charter/Headboat 

permitted vessels with a commercial 

sale endorsement the opportunity to fish 

commercially for BFT on non-RFDs and 

to charter on an RFD under the Angling 

category restrictions and limits. NMFS 

recognizes that the use of RFDs may 

allow for an increase in recreational 

catches of BFT on RFDs, but the 

purpose of this action is to extend the 

General category BFT fishery for the 

2021 fishing year. Although recreational 

landings may increase on RFDs, 

Charter/Headboat permitted vessels 

must abide by established retention 

limits; thus, NMFS anticipates that 

recreational landings would remain 

within the current annual Angling 

category quota. 

Comment 4: NMFS received 

comments, from both those in support 

of and opposed to RFDs, regarding the 

potential negative impacts of RFDs on 

BFT fishing tournaments. These 

commenters noted the economic 

importance of fishing tournaments on 

local economies and suggested that 

NMFS exempt participants in registered 

fishing tournaments from the RFD 

restrictions or increase the retention 

limit (i.e., waive RFDs) on tournament 

days. 

Response: NMFS acknowledges that 

RFDs that occur on a tournament date 

may affect BFT fishing at those 

tournaments as General category 

participants are prohibited from fishing 

for BFT on RFDs. However, on an RFD, 

General category participants may still 

participate in non-BFT fishing during 

the tournament, and may land sharks, 

swordfish, billfish, bigeye, albacore, 

yellowfin, and/or skipjack tunas 

recreationally as otherwise permitted. 

Additionally, on an RFD, Charter/ 

Headboat permitted vessels may 

participate recreationally in HMS 

fishing tournaments, including for BFT, 

under the applicable Angling category 

restrictions and retention limits. Under 

the current regulations, tournament 

operators are required to register their 

tournament with NMFS at least four 

weeks prior to the start of the 

tournament. As such, NMFS is aware of 

several fishing tournaments that will 

likely include BFT that often occur in 

August through November. Should a 

tournament change its dates of 

operation, NMFS encourages 

tournament operators to contact NMFS 

to update the dates for which their 


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tournament is registered. NMFS does 

not plan to waive RFDs specifically to 

accommodate tournaments, as doing so 

could eliminate the benefits of RFDs by 

allowing General category and Charter/ 

Headboat permitted vessels with a 

commercial sale endorsement the 

opportunity to land and sell commercial 

size BFT on those scheduled RFD dates. 

Furthermore, as explained above, 

General category and Charter/Headboat 

fishermen could still participate in 

tournaments during RFDs, albeit with 

the additional RFD restrictions and 

retention limits. NMFS will closely 

monitor BFT landings and catch rates 

and, should NMFS determine that 

waiving RFDs is warranted, NMFS 

could waive an RFD by adjusting the 

daily retention limits with a minimum 

3-day notification to fishermen, by filing 

such an adjustment in the Federal 

Register, under 50 CFR 635.23(a)(4). 

Comment 5: NMFS received several 

comments suggesting that NMFS should 

waive RFDs during HMS registered 

fishing tournaments because 

tournaments are a source of valuable 

scientific data and information for BFT. 

Response: NMFS understands the 

importance of fishing tournaments for 

the collection of scientific data on catch, 

effort, and participants, and the 

collection of biological samples. The 

scheduled RFDs will still allow the 

opportunity for valuable scientific data 

collection as recreational fishing 

tournaments can still proceed 

throughout the year. General category 

and Charter/Headboat fishermen could 

still participate in tournaments during 

RFDs, consistent with the applicable 

retention limits and RFD restrictions. 

Scientists who collect biological 

samples during fishing tournaments 

could still do so, even on an RFD, by 

collecting samples from those fish 

landed recreationally (under the 

Angling category) or as authorized 

under exempted fishing permits. NMFS 

will closely monitor BFT landings and 

catch rates and, should NMFS 

determine that waiving RFDs is 

warranted, NMFS could adjust the daily 

retention limits with a minimum 3-day 

notification to fishermen in the Federal 

Register, under 50 CFR 635.23(a)(4). 

Without RFDs, subquota time-periods in 

the later part of the year often close 

early, even if BFT are available, which 

in turn limits valuable data collection 

among General category participants. 

NMFS believes that extending the 

fishing year via RFDs and other 

inseason actions will benefit scientific 

data collection by allowing for 

collection of data during time-periods 

when the General category fishery is 

otherwise closed. 

Comment 6: NMFS received 

comments of concern that increasing the 

General category retention limit from 

the default of one fish to three fish to 

begin the June through August timeperiod subquota (86 FR 27814, May 24, 

2021) was counterproductive to the goal 

of setting RFDs. Several commenters 

requested the use of mechanisms other 

than RFDs to extend the fishery, such as 

maintaining the default retention limit 

throughout the season, limiting entry 

into the fishery, considering different 

closure dates at the end of subquota 

periods, and increasing the price for 

fishing permits. These commenters 

noted that increasing outreach and 

education before permit issuance and 

promoting tagging could benefit the 

fishery. 

Response: This action focuses on 

implementing RFDs, as currently 

authorized in the regulations, to slow 

the rate of General category landings, 

prevent early closures, and extend 

fishing opportunities through a greater 

portion of the General category timeperiod subquotas for the 2021 fishing 

year. NMFS will continue to use 

retention limits, RFDs, and other 

available management tools to manage 

the BFT fisheries, within the available 

BFT quota and established subquotas. In 

recent years, because the rate of 

landings is typically slow in early June, 

NMFS has regularly set the daily 

retention limit for the beginning of the 

June through August period at three 

fish, following consideration of the 

relevant criteria provided under 

§ 635.27(a)(8), including supporting 

scientific data collection. As 

appropriate, NMFS then typically 

reduces the limit to the one-fish default 

level based on catch rates associated 

with the various authorized gear types 

(e.g., harpoon, rod and reel) to ensure 

fishing opportunities in all respective 

time-period subquotas and to ensure 

that the available quota is not exceeded. 

As with other mechanisms mentioned 

above, RFDs are an available effort 

control mechanism that can be used to 

extend time-period subquotas and 

provide additional inseason 

management flexibility regarding quota 

use and distribution and season length. 

Unlike other mechanisms, in the current 

regulations, RFDs may only be used to 

assist with the management of the BFT 

General category fishery (i.e., permit 

categories that fish against the General 

category quota). NMFS is not 

considering the use of limited entry for 

the General category fishery at this time, 

although NMFS has used limited entry 

in other BFT fisheries, such as the 

pelagic longline fishery. Throughout the 

season, NMFS monitors landings and 

catch rates and will close the fishery or 

modify retention limits as appropriate to 

ensure the quotas are not exceeded. 

NMFS establishes the price of the 

permits based on the costs to administer 

the issuance of the permits; the price of 

the permits is not used as a means to 

limit or reduce entry to the fishery. 

NMFS will continue to monitor and 

evaluate the effectiveness of all these 

management measures in the context of 

current conditions to determine whether 

other actions are necessary. 

Comment 7: NMFS received 

comments noting issues with dealer 

practices, particularly regarding sale of 

poor quality BFT, and requesting that 

NMFS not resume use of RFDs. Several 

individuals noted that if the dealers 

would like better control over supply 

and demand related to state and 

international markets, those dealers 

should continue to limit their own 

purchases as was done in 2019 and 

2020. 

Response: NMFS does not control or 

regulate the activities of Federal 

Atlantic tunas dealers regarding the 

quality of fish sold on domestic or 

international markets. Instead, NMFS 

requires that dealers obtain a Federal 

dealer permit to purchase, trade, or 

barter any HMS and abide by the 

regulations under both § 635.4 and 

§ 635.5. As described in the proposed 

rule, NMFS received communications 

from dealers and fishermen regarding 

the self-imposed no (or limited) 

purchase days in 2019 and 2020. While 

these actions by dealers may have 

prevented an oversupply of BFT on the 

market and may have lengthened the 

time-period for some subquotas, because 

these actions were not pre-scheduled or 

consistently implemented across the 

fishery, some General category and 

Charter/Headboat permitted fishermen 

experienced negative impacts, and 

opportunities may not have been 

equitably distributed among all 

permitted vessels. Thus, NMFS is 

implementing a schedule of RFDs to 

apply consistently across the fishery to 

ensure that the General category fishery 

is extended for a greater portion of the 

subquota time-periods. This may have 

positive impacts for all General category 

and Charter/Headboat (commercial) BFT 

fishery participants by allowing for 

more equitable distribution of 

opportunities. 

Comment 8: NMFS received several 

comments that the proposed action 

would disadvantage General category 

fishermen because Harpoon category 

participants can fish for and sell BFT on 

RFDs. One commenter suggested that 

RFDs should apply across all categories. 


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Response: NMFS disagrees that this 

action disadvantages General category 

fishermen. As noted above, BFT catch 

rates have increased over recent years in 

the General category, shortening the 

time to fill subquotas, resulting in 

untimely subquota closures and 

unstable markets. NMFS believes that 

this rulemaking will benefit General 

category participants by spreading out 

fishing effort over time, which would 

extend fishing opportunities through a 

greater proportion of the subquota timeperiods. Other categories (e.g., Harpoon, 

Purse Seine, Longline, and Trap) are not 

experiencing these issues because of the 

unique characteristics (including gear, 

timing, and participation) of those 

fisheries. As such, at this time, NMFS 

does not intend to implement RFDs for 

any other category. 

Comment 9: NMFS received a 

comment supporting RFDs but 

expressing concern regarding the impact 

of RFDs on General category fishermen 

targeting non-BFT. 

Response: General category fishermen 

are still allowed to fish for, retain, land, 

and sell non-BFT species on RFDs 

under the applicable General category 

permit restrictions and retention limits. 

The RFD prohibition only applies to 

General category fishermen when 

fishing for (including catch-and-release 

or tag-and-release fishing), possessing, 

retaining, landing, or selling BFT. 

Comment 10: NMFS received several 

comments requesting that RFDs be 

implemented as a pilot program for 

2021 and that NMFS re-evaluate RFDs 

for future years. 

Response: Due to high landings rates 

in recent years and the fact that the 

fishery has continued to close earlier 

than desired, and based on the 

expectation that landings rates in 2021 

will be similar to landings rates in 

recent years without additional 

measures, NMFS is implementing RFDs 

for 2021 through this final rule. While 

NMFS is not implementing this change 

as a pilot program, NMFS will continue 

to monitor landings rates to determine 

whether RFDs are necessary in future 

fishing years, and will take appropriate 

action when warranted. 

Comment 11: NMFS received several 

comments from part-time commercial 

fishermen noting that this action would 

have negative impacts on those 

fishermen that work other jobs full-time 

during the week and supplement their 

income with weekend fishing trips. 

Response: NMFS acknowledges that 

this action may affect part-time 

commercial fishermen who fish on the 

weekend. Note that NMFS manages the 

BFT fishery to allow equitable fishing 

opportunities for all participants. 

Therefore, as described in the proposed 

rule, and above in the response to 

Comment 2, NMFS developed the 2021 

RFD schedule to allow for some 

commercial fishing activity each 

weekend by maintaining Sunday as an 

open fishing day. 

Comment 12: NMFS received several 

comments noting that the BFT stock has 

rebounded and is healthy, and that, 

therefore, this action is unwarranted. 

Additionally, some commenters noted 

that NMFS is overly restrictive to BFT 

fishermen in New England. 

Response: NMFS disagrees that this 

action is unwarranted. The purpose of 

this action, consistent with the 

objectives of the 2006 Consolidated 

HMS FMP and its amendments and 

other applicable laws, is to set a 

schedule of RFDs for the 2021 fishing 

year as an effort control for the General 

category quota, and to extend General 

category fishing opportunities through a 

greater portion of the General category 

time-period subquotas than have been 

available in recent years. NMFS does 

not manage the General category fishery 

by region. Instead, these regulations are 

applicable to all General category permit 

holders and Charter/Headboat permitted 

vessels that fish commercially for BFT. 

Regarding the status of BFT, the 

western Atlantic BFT stock is assessed 

by ICCAT. Currently the stock status 

remains unknown, and, for 2021, ICCAT 

continues to manage the stock under an 

interim conservation and management 

plan. In 2018, NMFS implemented a 

final rule that established the U.S. BFT 

quota and subquotas consistent with 

ICCAT Recommendation 17–06 (83 FR 

51391, October 11, 2018). In 2020, 

following a stock assessment update, 

ICCAT adopted Recommendation 20– 

06, which maintained the total 

allowable catch of 2,350 metric tons 

(mt) and the associated U.S. quota. As 

such, as described in § 635.27(a), the 

current baseline U.S. quota remains 

1,247.86 mt (not including the 25 mt 

ICCAT allocated to the United States to 

account for bycatch of BFT in pelagic 

longline fisheries in the Northeast 

Distant Gear Restricted Area). This 

action helps manage the BFT fisheries 

within that available quota and the 

category subquotas as established in 

existing regulations. 

Comment 13: One commenter 

suggested that NMFS launch an 

outreach campaign to the general public 

regarding the importance of seafood 

consumption to improve domestic 

market conditions. 

Response: This comment is outside 

the scope of this rulemaking, which 

pertains only to RFDs. Additionally, 

NMFS already has an outreach 

campaign, titled ‘‘Eat Seafood, 

America!,’’ designed to provide 

information about sustainable seafood 

and the importance of seafood 

consumption. More information can be 

found at https://

www.fisheries.noaa.gov/topic/ 

sustainable-seafood#eat-seafood,- 

america!. 

Changes From the Proposed Rule 

Except for changing the 2021 RFD 

schedule start date from July 20, 2021, 

to September 3, 2021 to accommodate 

the time needed to fully consider 

comments and prepare this final rule, 

this final rule contains no changes from 

the proposed rule. 

Classification 

The NMFS Assistant Administrator 

has determined that this final rule is 

consistent with the 2006 Consolidated 

HMS FMP and its amendments, other 

provisions of the Magnuson-Stevens 

Act, ATCA, and other applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Pursuant to 5 U.S.C. 553(d)(3), the 

NMFS Assistant Administrator has 

determined that there is good cause to 

waive the 30-day delay in the date of 

effectiveness for this final action. 

Because the fishing year is already 

underway, delaying the effectiveness of 

these regulations could undermine the 

purpose of this action to implement a 

RFD schedule that would help manage 

the fishery within the existing General 

category subquotas and extending the 

duration of the fishery throughout the 

subquota time-periods. Waiting 30 days 

to make the rule effective increases the 

likelihood of the General category 

subquotas being met and exceeded, 

resulting in inseason closures earlier 

than desired. 

Implementing RFDs as soon as 

possible provides NMFS additional 

inseason management flexibility. 

Although the General category has a 

relatively large quota for the 2021 

fishing year, the General and HMS 

Charter/Headboat permit category have 

the ability to harvest a large amount of 

General category quota in a short period 

of time, specifically from late July 

through November. Establishing RFDs 

during this time span is essential to 

extend fishing opportunities within 

each subquota time-period while also 

preventing market gluts, which, in 

recent years, have resulted in an 

increase in the number of BFT that are 

landed and not sold and have resulted 

in lower prices for the BFT that are sold. 

Additionally, establishing RFDs earlier 

in the fishing year provides better 


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business planning opportunities for 

Atlantic Tunas General category 

permittees and HMS Charter/Headboat 

owners/operators. As such, NMFS 

believes that a 30-day delay in setting 

RFDs would be contrary to the public 

interest. 

For the reasons described above, the 

Assistant Administrator finds good 

cause to make this rule effective 

immediately upon publication in the 

Federal Register. 

A Final Regulatory Flexibility 

Analysis (FRFA) was prepared for this 

rule. The FRFA incorporates the initial 

regulatory flexibility analysis (IRFA), a 

summary of the significant issues raised 

by the public comments in response to 

the IRFA, our responses to those 

comments and a summary of the 

analyses completed to support the 

action. The full FRFA is available from 

NMFS (see ADDRESSES). A summary is 

provided below. 

Section 604(a)(1) of the Regulatory 

Flexibility Act (RFA) requires agencies 

to state the need for and objective of, the 

final action. The objective of this final 

rulemaking is to set a schedule of RFDs 

for the 2021 fishing year that should 

slow the rate of General category 

landings to extend fishing opportunities 

through a greater portion of the 

subquota periods (similar to past RFD 

schedules that set RFD schedules for the 

fishing year). Additionally, this final 

rule clarifies the regulations regarding 

applicability of RFDs to vessels 

permitted in the HMS Charter-Headboat 

category. 

Section 604(a)(2) requires that a FRFA 

include a summary of significant issues 

raised by public comment in response to 

the IRFA and a summary of the agency’s 

assessment of such issues, and a 

statement of any changes made in the 

rule as a result of such comments. As 

described above, during the public 

comment period, NMFS received 

comments both in support of and 

opposed to resuming RFDs. No 

comments specifically referenced the 

IRFA, although some comments raised a 

variety of economic concerns including 

whether RFDs would affect the market 

(see comments 1 and 7), whether RFDs 

would affect some parts of the fishery 

more than others (see comments 8 and 

11), and whether RFDs would 

negatively affect tournaments (see 

comments 4 and 5). NMFS’ responses to 

those comments are summarized above. 

After careful consideration of all the 

comments received, except for changing 

the start date of the first RFD to account 

for the date of publication of this final 

rule, no other changes were made to the 

proposed rule. 

Section 604(a)(3) of the RFA requires 

NMFS to respond to any comments filed 

by the Chief Counsel for Advocacy of 

the Small Business Administration 

(SBA) in response to the proposed rule 

and provide a detailed statement of any 

change made to the proposed rule as a 

result of the comments. NMFS did not 

receive any comments from the Chief 

Counsel for Advocacy of the SBA on the 

proposed rule. 

Section 604(a)(4) of the RFA requires 

agencies to provide an estimate of the 

number of small entities to which the 

rule would apply. NMFS established a 

small business size standard of $11 

million in annual gross receipts for all 

businesses in the commercial fishing 

industry (NAICS 11411) for RFA 

compliance purposes (50 CFR 200.2). 

The Small Business Administration 

(SBA) has established size standards for 

all other major industry sectors in the 

United States, including the scenic and 

sightseeing transportation (water) sector 

(NAICS code 487210), which includes 

for-hire (charter/party boat) fishing 

entities. The SBA has defined a small 

entity under the scenic and sightseeing 

transportation (water) sector as one with 

average annual receipts (revenue) of less 

than $8.0 million. Therefore, NMFS 

considers all HMS permit holders, both 

commercial and for-hire, to be small 

entities because they had average 

annual receipts of less than their 

respective sector’s standard of $11 

million and $8 million. The 2019 total 

ex-vessel annual revenue for the BFT 

fishery was $9.8 million. Since a small 

business is defined as having annual 

receipts not in excess of $11.0 million, 

each individual BFT fishing entity 

would fall within the small business 

definition. Thus, all of the entities 

affected by this rule are considered to be 

small entities for the purposes of the 

RFA. The numbers of relevant annual 

Atlantic Tunas or Atlantic HMS permits 

as of October 2020 are as follows: 2,645 

General category permit holders and 

3,839 HMS Charter/Headboat permit 

holders, of which 1,681 hold HMS 

Charter/Headboat permits with a 

commercial sale endorsement. 

Section 604(a)(5) of the RFA requires 

agencies to describe any new reporting, 

record-keeping, and other compliance 

requirements. This final rule does not 

contain any new collection of 

information, reporting, or recordkeeping requirements. This final rule 

would set a schedule of RFDs for 2021 

as an effort control for the General 

category quota and would clarify 

existing regulatory text about the 

applicability of RFDs to HMS Charter/ 

Headboat permitted vessels. 

Section 604(a)(6) of the RFA requires 

agencies in the FRFA to describe any 

steps taken to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

applicable statutes. 

This final rule does not change the 

U.S. Atlantic BFT quotas or implement 

any new management measures not 

previously considered under the 2006 

Consolidated HMS FMP and its 

amendments. This final rule will 

instead resume the use of RFDs, set a 

schedule of RFDs for 2021, clarify 

existing regulatory text about the 

applicability of RFDs to HMS Charter/ 

Headboat permitted vessels, and make a 

minor change to correct two permit title 

references in a section of the 

regulations. Under the regulations, 

when a General category time-period 

subquota is reached or projected to be 

reached, NMFS closes the General 

category fishery. Retaining, possessing, 

or landing BFT under that quota 

category is prohibited on and after the 

effective date and time of a closure 

notice for that category, for the 

remainder of the fishing year, until the 

opening of the subsequent quota period 

or until such date as specified. In recent 

years, these closures, if needed, have 

generally occurred toward the end of a 

particular subquota time-period. 

According to communications with 

dealers and fishermen, several of the 

high-volume HMS Atlantic tunas 

dealers in 2019 and 2020 were limiting 

their purchases of BFT and buying no or 

very few BFT (such as harpooned fish 

only) on certain days during the 

beginning portion of the June through 

August subquota time-period in order to 

extend the available quota until later in 

the subperiod given market 

considerations. However, while these 

actions may have prevented large 

numbers of BFT from entering the 

market at the same time and may have 

lengthened the time before any 

particular subquota was closed, because 

these actions were not pre-scheduled or 

consistently implemented across the 

fishery, some General category and 

Charter/Headboat permitted fishermen 

especially those who could not find 

buyers for their BFT—experienced 

negative impacts. As a result, a number 

of BFT that normally would have been 

sold were not, and opportunities may 

not have been equitably distributed 

among all permitted vessels. Table 1 

shows the number and total metric tons 

(mt) of BFT that were landed but not 

sold by fishermen fishing under the 

General category quota for 2017 through 

2020. The number and weight of unsold 

BFT has been increasing since 2017 and 


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increased substantially (from 20 to 173 

BFT and 3.8 to 31.4 mt) between 2019 

and 2020. 

TABLE 1—THE NUMBER (COUNT) AND

WEIGHT (mt) OF BFT THAT WERE

LANDED BUT UNSOLD BY GENERAL

CATEGORY PARTICIPANTS BY YEAR

Year Count Weight 

(mt) 

2017 .................................. 0 0 

2018 .................................. 14 2.6 

2019 .................................. 20 3.8 

2020 .................................. 173 31.4 

Total .............................. 207 37.8 

In addition to reviewing the data 

regarding the amount of unsold BFT, 

NMFS also reviewed the average exvessel price. Table 2 shows the average 

ex-vessel price per pound of BFT during 

each General category subquota timeperiod for the years 2017 through 2020. 

On an annual basis, the ex-vessel price 

tends to be lower for the June through 

August subquota time-period, with an 

average (2017 through 2020) price of 

$6.04, and increases over the summer 

and fall period ($6.30 for September 

period and $6.49 for the October 

through November period). NMFS 

understands that several factors 

influenced dealers’ decisions to not 

purchase BFT in 2019 (e.g., fish 

conditions, daily retention limits, and 

market conditions) and that in 2020, the 

worsening of global market conditions 

was an additional factor impacting the 

number of BFT unsold. These 

conditions generally occurred in June 

through August 2019, and were repeated 

in June through August 2020, with 

conditions and prices improving by the 

fall. However, in 2020, the average price 

per pound was lower for the June 

through December subquota timeperiods than in any of the three 

previous years. 

TABLE 2—AVERAGE EX-VESSEL PRICE PER POUND ($) OF BFT BY GENERAL CATEGORY SUBQUOTA TIME-PERIOD

[2017–2020] 

Year 

Subquota time-period 

January 

through 

March 

June 

through 

August 

September 

October 

through 

November 

December 

2017 ......................................................................................................... $7.37 $6.72 $7.08 $7.56 $9.83 

2018 ......................................................................................................... 7.43 6.92 6.55 7.58 9.56 

2019 ......................................................................................................... 6.06 5.61 6.36 5.53 12.25 

2020 ......................................................................................................... 6.13 4.91 5.21 5.30 5.76 

2017 through 2020 average ............................................................. 6.75 6.04 6.30 6.49 9.35 

To help address these issues, NMFS is 

establishing a schedule of RFDs for the 

2021 fishing year that will regulate 

specific days on which fishing and sales 

will not occur. Specifically, the 

schedule allows for two-consecutiveday periods twice each week for BFT 

products to move through the market 

while also allowing some commercial 

fishing activity to occur each weekend 

(i.e., Sundays), thus providing 

opportunities for participants who may 

only fish on the weekend. Because this 

schedule of RFDs will apply to all 

participants equally, NMFS anticipates 

that this schedule will extend fishing 

opportunities through a greater 

proportion of the subquota time-periods 

in which they apply by spreading 

fishing effort out over time. 

Furthermore, to the extent that the 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 increase 

in BFT price, and the revenue generated 

by the General category subquotas could 

increase. Thus, although NMFS 

anticipates that the same overall amount 

of the General category quota would be 

landed and the same amount of BFT 

would be landed per vessel, there may 

be some positive impacts to the General 

category and Charter/Headboat 

(commercial) BFT fishery. Using RFDs 

may more equitably distribute fishing 

opportunities for longer durations 

within the subquota time-periods. 

However, the RFD schedule may have a 

negative impact to some General 

category fishermen who might only be 

able to fish on weekends, as Saturdays 

would be RFDs through November 30, 

2021. To mitigate the loss of fishing 

days, NMFS is allowing fishing 

opportunities to occur on Sundays. 

Thus, if NMFS does not implement a 

schedule of RFDs, as in this final rule, 

it is possible that the trends of 

increasing numbers of unsold BFT 

(Table 1) and decreasing ex-vessel 

prices (Table 2) would continue. If these 

trends continue, many participants 

could continue to experience negative 

economic impacts. 

This final rule contains no 

information collection requirements 

under the Paperwork Reduction Act of 

1995. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rule. As part of this 

rulemaking process, NMFS has prepared 

a booklet summarizing fishery 

information and regulations for Atlantic 

BFT General category RFDs for the 2021 

fishing year. That booklet notice serves 

as the small entity compliance guide. 

Copies of the compliance guide are 

available from NMFS (see ADDRESSES). 

List of Subjects in 50 CFR Part 635 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Statistics, Treaties. 

Dated: July 30, 2021. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 635 is amended 

as follows: 


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PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES 

■ 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. 

■ 2. In § 635.2, revise the definition of 

‘‘Restricted-fishing day (RFD)’’ to read 

as follows: 

§ 635.2 Definitions. 

* * * * * 

Restricted-fishing day (RFD) is a day, 

beginning at 0000 hours and ending at 

2400 hours local time, during which a 

person aboard a vessel issued: 

(1) An Atlantic Tunas General 

category permit may not fish for, 

possess, retain, land, or sell a BFT; and 

(2) A Charter/Headboat permit with a 

commercial endorsement may not fish 

commercially for BFT under the General 

category rules, but may fish for, possess, 

retain, or land BFT under the Angling 

category restrictions and retention 

limits. 

* * * * * 

■ 3. In § 635.23, revise paragraphs (a)(1) 

and (3) and (c)(1) through (3) and add 

paragraph (c)(4) to read as follows: 

§ 635.23 Retention limits for bluefin tuna. 

* * * * * 

(a) * * * (1) No person aboard a 

vessel that has an Atlantic Tunas 

General category permit may possess, 

retain, land, or sell a BFT in the school, 

large school, or small medium size 

class. 

* * * * * 

(3) Regardless of the length of a trip, 

no more than a single day’s retention 

limit of large medium or giant BFT may 

be possessed or retained aboard a vessel 

that has an Atlantic Tunas General 

category permit. On days other than 

RFDs, when the General category is 

open, no person aboard such vessel may 

continue to fish, and the vessel must 

immediately proceed to port, once the 

applicable limit for large medium or 

giant BFT is retained. 

* * * * * 

(c) * * * 

(1) When fishing in the Gulf of 

Mexico, the restrictions and retention 

limits applicable to the Angling category 

specified in paragraph (b)(1) of this 

section apply. 

(2) When fishing other than in the 

Gulf of Mexico when the fishery for the 

General category is closed or on an RFD, 

the restrictions and retention limits 

applicable to the Angling category 

specified in paragraphs (b)(1) through 

(b)(3) of this section apply. 

(3) When fishing other than in the 

Gulf of Mexico when the General 

category fishery is open and not on an 

RFD, a person aboard a vessel that has 

been issued an HMS Charter/Headboat 

permit with a commercial sale 

endorsement may fish under either the 

General category restrictions and 

retention limits as specified in 

paragraphs (a)(1) through (3) of this 

section or the Angling category 

restrictions and retention limits as 

specified in paragraphs (b)(1) through 

(3) of this section. The size category of 

the first BFT retained will determine 

whether the General category or Angling 

category restrictions and retention limits 

apply to the vessel that day. 

(4) When fishing other than in the 

Gulf of Mexico when the General 

category fishery is open and not on an 

RFD, a person aboard a vessel that has 

been issued an HMS Charter/Headboat 

permit without a commercial sale 

endorsement permit may only fish for, 

possess, retain, or land BFT under the 

Angling category restrictions and 

retention limits as specified in 

paragraphs (b)(1) through (3) of this 

section. 

* * * * * 

[FR Doc. 2021–16685 Filed 8–6–21; 8:45 am] 

BILLING CODE 3510–22–P 


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