[Federal Register Volume 85, Number 177 (Friday, September 11, 2020)]
[Proposed Rules]
[Pages 56208-56211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19953]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 200903-0232]
RIN 0648-BJ94


Pacific Island Fisheries; Interim Measures for American Samoa 
Bottomfish

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

ACTION: Proposed temporary rule; interim measures; request for 
comments.

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SUMMARY: NMFS proposes this temporary rule for an interim catch limit 
(ICL) of 13,000 lb of American Samoa bottomfish for fishing year 2020. 
NMFS would monitor 2020 catches, and if the fishery reaches the ICL, we 
would close the fishery in Federal waters for the remainder of the 
calendar year. This temporary action is necessary to reduce overfishing 
of American Samoa bottomfish while minimizing socio-economic impacts to 
fishing communities. This proposed rule supports the long-term 
sustainability of American Samoa bottomfish.

DATES: NMFS must receive comments by September 28, 2020.

ADDRESSES: You may submit comments on this proposed temporary rule, 
identified by NOAA-NMFS-2020-0099, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/docket?D=NOAA-NMFS-2020-0099, click the ``Comment 
Now!'' icon, complete the required fields, and enter or attach your 
comments.
     Mail: Send written comments to Michael D. Tosatto, 
Regional Administrator, NMFS Pacific Islands Region (PIR), 1845 Wasp 
Blvd., Bldg. 176, Honolulu, HI 96818.
    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 
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).
    The Fishery Ecosystem Plan for the American Samoa Archipelago (FEP) 
is available from the Council, 1164 Bishop St., Suite 1400, Honolulu, 
HI 96813, tel 808-522-8220, or www.wpcouncil.org.
    NMFS prepared a draft environmental assessment (EA) that describes 
the potential impacts on the human environment that could result from 
this temporary rule. The draft EA and other supporting documents are 
available from www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Brett Schumacher, NMFS PIR Sustainable 
Fisheries, 808-725-5185.

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the bottomfish 
fishery in the U.S. Exclusive Economic Zone (Federal waters) around 
American Samoa under the FEP and the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). Most of 
the management measures for the fishery are found at 50 CFR 665.
    In 2019, the NMFS Pacific Islands Fisheries Science Center (PIFSC) 
published a benchmark stock assessment that indicated that the multi-
species bottomfish stock complex in American Samoa is overfished and 
experiencing overfishing. NMFS presented these findings at the October 
2019 meeting of the Council's Scientific and Statistical Committee 
(SSC) in Honolulu, Hawaii, and at the October 2019 Council meeting in 
Pago Pago, American Samoa. At these meetings, the SSC and Council 
accepted the stock assessment as the best scientific information 
available for the management of bottomfish in American Samoa. In 
January 2020, NMFS determined that the assessment results represent the 
best scientific information available, consistent with National 
Standard 2 of the Magnuson-Stevens Act. Accordingly, NMFS determined in 
February 2020, that the stock is overfished and subject to overfishing, 
and notified the Council of this determination and the Council's 
obligations to end overfishing and rebuild the stock under Magnuson-
Stevens Act section 304(e)(3).
    Upon notification that a stock is subject to overfishing, the 
Council must immediately set catch at a level that would end 
overfishing. See 50 CFR 600.310(j)(2)(i). Upon notification that a 
stock is overfished, the Council must prepare and implement a fishery 
management plan, plan amendment, or regulation that wound end 
overfishing and rebuild the stock. See 50 CFR 600.310(j)(2)(ii). This 
action must be implemented within two years of the notification.
    The 2019 stock assessment indicated that the annual catch would 
need to be limited to no more than 8,000 lb through 2025 to end 
overfishing, consistent with the Magnuson-Stevens Act and National 
Standard 1. However, the average annual catch of American Samoa 
bottomfish management unit species (MUS) in the latest five years of 
the stock assessment (2013-2017) was 21,129 lb. The Council discussed 
the results of the stock assessment, including the levels of catch that 
would be needed to end overfishing immediately, at its 180th meeting in 
American Samoa in October 2019. Fishermen commented that a catch limit 
of 8,000 lb bottomfish that would end overfishing, or a closure of the 
federal fishery altogether, would result in detrimental economic, 
social, and cultural impacts. They indicated that bottomfish, 
particularly the species found in the deeper federal waters, are 
primarily used for cultural purposes and for subsistence, rather than 
for profit. In response to these concerns, the Council requested that 
NMFS implement an interim measure to reduce, but not necessarily end 
immediately, overfishing of the stock while the Council develops action 
required by MSA 304(e)(3), consistent with section 304(e)(6). In 
consideration of concerns from fishermen and the Council's request, 
NMFS considered catch levels greater than 8,000 lb that would mitigate 
effects of management on fishing communities while the Council and NMFS 
develop long-term management measures to end overfishing and rebuild 
the stock.
    The regulations on emergency actions and interim measures under 
National Standard 1 (50 CFR 600.310(j)(4)) provide conditions that must 
be met to implement an interim measure under MSA 304(e)(6):
    1. The interim measures are needed to address an unanticipated and 
significantly changed understanding of the status of the stock or stock 
complex;
    2. Ending overfishing immediately is expected to result in severe 
social and/or economic impacts to a fishery; and
    3. The interim measures will ensure that the stock or stock complex 
will increase its current biomass through the duration of the interim 
measures.
    We evaluate whether these conditions are met in the EA and 
summarize as follows:
    1. The overfished and overfishing conditions in the fishery were 
not known before the 2019 benchmark stock assessment, and the stock was 
believed

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to be healthy according to the previous stock assessment. Thus, 
condition (1) has been met;
    2. Catch would have to be substantially reduced from recent catches 
to immediately end overfishing (from over 21,000 lb to 8,000 lb), and 
comments from fishermen indicate that ending overfishing immediately 
would have negative social, economic, and cultural impacts to community 
members who use bottomfish resources for commercial, subsistence, 
religious, and cultural purposes. The Council recognized these 
perspectives in their request for an interim action and believes that 
ending overfishing immediately would have severe social and/or economic 
impacts to the fishery, and NMFS concurs with this conclusion. Thus, 
condition (2) has been met; and
    3. The PIFSC completed expanded catch projections that indicated a 
catch of up to 13,000 lb would allow the MUS stock biomass to increase 
during the effective period of this interim measure. Implementing a 
catch limit of 13,000 lb and closing the fishery after that limit is 
reached would ensure biomass increases (condition 3). However, even 
after a closure of the fishery in Federal waters, catch is expected to 
continue unconstrained in American Samoa waters. Thus, catch is 
expected to exceed 13,000 lb notwithstanding NMFS's implementation of a 
catch limit of 13,000 lb. Due to unconstrained fishing of the stock in 
American Samoa waters, no NMFS action can ensure that biomass 
increases. However, a catch limit of 13,000 lb provides a conservation 
benefit relative to the status quo (i.e., an unconstrained fishery), 
reduces overfishing, and contributes to rebuilding the stock.
    NMFS discussed potential alternative management options for the 
interim measure at subsequent public Council meetings, and during 
meetings with managers from the American Samoa Department of Marine and 
Wildlife Resources (DMWR). Fishermen and Council members from American 
Samoa commented at public Council meetings that a catch limit of 0 lb, 
8,000 lb, or even 13,000 lb would have social, cultural and economic 
effects. In a June 15, 2020, letter to the NMFS Pacific Islands 
Regional Office, the DMWR expressed concerns that the ICL of 13,000 lb 
is too low for their fishermen to subsist, and that a closure of 
offshore banks in Federal waters to bottomfish fishing would deprive 
fishermen of important fishing grounds for deep-water snappers that are 
critical for cultural ceremonies.
    Based on this information and considering the best scientific 
information available and Federal requirements for interim management 
actions, NMFS proposes to implement an ICL of 13,000 lb. This ICL 
provides a balance between regulatory requirements to reduce 
overfishing, and the need to mitigate impacts of fishery management on 
communities in American Samoa. The best scientific information 
available projects that 13,000 lb is the greatest level catch that 
would allow stock biomass to increase during the interim measure, as 
required by 50 CFR 600.310(j)(4), so Federal regulations do not allow 
NMFS to implement a greater ICL. At the same time, 13,000 lb is 63 
percent greater the 8,000 lb level that would end overfishing. The 
present action therefore addresses impacts to the fishery and related 
communities (inclusive of cultural fishing practices) to the degree 
NMFS is able within regulatory constraints. Under the proposed measure, 
overfishing would be reduced relative to the status quo, and socio-
economic impacts to the community would be minimized relative to 
measures that would end overfishing immediately.
    The conservation benefit achieved by this measure may be mitigated 
by circumstances outside NMFS authority. Specifically, catch would 
likely exceed the ICL because 85 percent of bottomfish habitat is 
located in territorial waters that are outside of NMFS authority, and 
American Samoa does not have regulations that would close territorial 
waters in the event a Federal ICL is reached. Therefore, if the ICL is 
reached and NMFS closes the fishery in Federal waters, fishing is 
expected to continue unconstrained in territorial waters. While NMFS 
does not have detailed spatial information to determine the amount of 
bottomfish caught in territorial waters versus Federal waters, we 
assume that bottomfish abundance and catch are distributed equally 
across habitat. We therefore assume that 15 percent of total catch will 
occur in Federal waters because 15 percent of bottomfish habitat occurs 
in federal waters. If the ICL is reached and NMFS closes the fishery in 
Federal waters catch is expected to exceed 13,000 lb, because most 
habitat is in territorial waters and would remain open to bottomfish 
fishing. However, because this action provides for the closure of 
offshore fishing grounds under Federal jurisdiction, we expect some 
conservation benefit to the stock complex. Therefore, we anticipate the 
proposed interim rule would provide a conservation benefit relative to 
the no-action alternative.
    To maintain consistency with the timeframe of catch projections and 
the bottomfish fishing year (January-December), under the proposed rule 
NMFS would monitor catches of bottomfish MUS made in both territorial 
and Federal waters during calendar year 2020 and count the combined 
2020 catch toward the ICL. As an inseason AM, if NMFS projects that the 
fishery will reach the ICL, we would close the fishery in Federal 
waters through December 31, 2020.
    NMFS will consider public comments on this proposed temporary rule, 
and specifically invites public comments that address the impact of 
this proposed action on cultural fishing in American Samoa. NMFS will 
announce the final rule in the Federal Register. We must receive any 
comments by the date provided in the DATES heading, not postmarked or 
otherwise transmitted by that date.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the FEP, the Magnuson-Stevens Act, and other 
applicable law, subject to further consideration after public comment.

Administrative Procedure Act

    Section 304(b) of the Magnuson-Stevens Act provides for a 15-day 
comment period for these types of fishery rules (See 16 U.S.C. 
1854(b)). Additionally, NMFS finds good cause that a longer notice and 
comment period would be contrary to public interest. Specifically, the 
proposed action needs to be implemented immediately to establish 
thresholds that would minimize adverse biological effects to the stock 
and adverse long-term socioeconomic effects to fishermen and 
communities that utilize bottomfish in American Samoa.

Certification of Finding of No Significant Impact on Substantial Number 
of Small Entities

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The proposed action would specify an interim catch limit (ICL) of 
13,000 lb for American Samoa bottomfish for 2020, as well as in-season 
accountability measure (AM). If and when the available data indicates 
the fishery would reach ICL, NMFS would close the fishery in

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Federal waters, from the outer boundary of territorial waters at 3 
miles from shore to 200 miles from shore, for the remaining time that 
the interim catch limit is in effect as an AM. As authorized under 
section 305(c) of the Magnuson-Stevens Act, the rule would be in effect 
for no more than 180 days, from the date of publication in the Federal 
Register, through December 31, 2020. To maintain consistency with the 
timeframe of the fishing year in the fishery and catch projections from 
NMFS, catches made after January 1, 2020, in both territorial waters 
and Federal waters around American Samoa would count toward the ICL for 
the 2020 fishing year. Provided certain conditions have been met, NMFS 
may extend the interim measures from January 1, 2021, to July 5, 2021, 
for an additional 186 days.
    The fishery is likely to reach the ICL, given recent catch history, 
as catch of American Samoa bottomfish has exceeded the proposed ICL 
annually from 2013 to 2017. Catch estimates for these years are 
available from the stock assessment, which provides the best available 
estimate of total catch of BMUS. These estimates include catch of BMUS 
reported at the species level, plus an estimate of BMUS catch reported 
under general categories (e.g., snapper, emperor, deep bottomfish). 
Estimated total catch data for 2018 and 2019 that would be directly 
comparable are not available. Most catch would have been retained for 
personal consumption or sharing, rather than sold, as the American 
Samoa bottomfish fishery is predominantly non-commercial with at most 
30 participants. In recent years, NMFS estimates catch sold (percent of 
catch sold) to be as follows: 2,047 lb (6.9 percent) in 2015, 1,131 lb 
(5.6 percent) in 2016, and 1,137 lb (7.1 percent) in 2017. Revenue from 
American Samoa bottomfish catch were an estimated $6,075 in 2015, 
$3,896 in 2016, and $5,688 in 2017. Upon reaching the ICL, fishing for 
or possessing American Samoa bottomfish would be prohibited in Federal 
waters around American Samoa, as would sale, purchase, or possession of 
any American Samoa bottomfish caught in Federal waters. Because 85 
percent of the bottomfish habitat is in territorial waters located 
closer to shore, most catch likely comes from territorial waters rather 
than Federal waters, although NMFS does not have quantitative 
information on catch by location.
    For Regulatory Flexibility Act (RFA) purposes only, NMFS has 
established a small business size standard, including their affiliates, 
whose primary industry is commercial fishing (see 50 CFR 200.2). A 
business primarily engaged in commercial fishing (NAICS code 11411) is 
classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide. Based on available 
information, NMFS has determined that all affected entities are small 
entities under the SBA definition of a small entity, i.e., they are 
engaged in the business of fish harvesting, are independently owned or 
operated, are not dominant in their field of operation, and have gross 
receipts not in excess of $11 million. Therefore, there would be no 
disproportionate economic impacts between large and small entities. 
Furthermore, there would be no disproportionate economic impacts among 
the universe of vessels based on gear, home port, or vessel length. 
There might be some disproportionate economic impacts on areas fished. 
Bottomfish fishermen in American Samoa who tend to fish for bottomfish 
in Federal waters rather than territorial waters, would need to modify 
their target catch or fishing activities, including areas fished, in 
the event of a closure of this fishery while the interim measure is in 
effect. For those who do catch some bottomfish fish for sale, this 
could mean an increase in costs and/or decrease in revenue.
    Even though this proposed action would apply to a substantial 
number of vessels, this action should not result in significant adverse 
economic impacts to individual entities, as this is primarily a non-
commercial fishery. The proposed action does not duplicate, overlap, or 
conflict with other Federal rules and is not expected to have 
significant impact on small entities (as discussed above), 
organizations, or government jurisdictions. The proposed action also 
will not place a substantial number of small entities, or any segment 
of small entities, at a significant competitive disadvantage to large 
entities.
    For the reasons above, NMFS does not expect the proposed action to 
have a significant economic impact on a substantial number of small 
entities. As such, an initial regulatory flexibility analysis is not 
required and none has been prepared.

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Executive Order 13771

    This proposed rule is not an Executive Order 13771 regulatory 
action because this rule is not significant under Executive Order 
12866.

List of Subjects in 50 CFR Part 665

    Accountability measure, American Samoa, Bottomfish, Fisheries, 
Fishing, Interim catch limit, Pacific Islands.

    Dated: September 3, 2020.
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 665 as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for 50 CFR part 665 continues to read as 
follows:

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

0
2. Add Sec.  665.102 to read as follows:


Sec.  665.102  Bottomfish Interim Catch Limit.

    (a) The interim catch limit for American Samoa bottomfish MUS for 
fishing year 2020 is 13,000 lb.
    (b) When the interim catch limit is projected to be reached, the 
Regional Administrator shall publish a document to that effect in the 
Federal Register and shall use other means to notify permit holders. 
The document will include an advisement that the fishery will be 
closed, beginning at a specified date that is not earlier than seven 
days after the date of filing the closure notice for public inspection 
at the Office of the Federal Register, through the end of the fishing 
year in which the interim catch limit is reached.
    (c) On and after the date the fishery is closed as specified in 
paragraph (b) of this section, fishing for and possession of American 
Samoa bottomfish MUS is prohibited in Federal waters around American 
Samoa, except as otherwise authorized by law.
    (d) On and after the date the fishery is closed as specified in 
paragraph (b) of this section, possession, sale, offering for sale, and 
purchase of any American Samoa bottomfish MUS caught in Federal waters 
around American Samoa is prohibited.
0
3. In Sec.  665.103, suspend the introductory paragraph, add paragraph 
(a) and reserve paragraph (b) to read as follows:


Sec.  665.103  Prohibitions.

    (a) In addition to the general prohibitions specified in Sec.  
600.725 of this chapter and Sec.  665.15, it is unlawful for any person 
to do any of the following:
    (1) Fish for American Samoa bottomfish MUS or ECS, or seamount

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groundfish MUS using gear prohibited under Sec.  665.104.
    (2) Fish for, possess, sell, offer for sale, or purchase any 
American Samoa bottomfish MUS in a closed fishery, in violation of 
Sec.  665.102.
    (b) [Reserved]

[FR Doc. 2020-19953 Filed 9-10-20; 8:45 am]
BILLING CODE 3510-22-P