[Federal Register Volume 85, Number 218 (Tuesday, November 10, 2020)]
[Rules and Regulations]
[Pages 71577-71579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24752]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 201102-0284]
RIN 0648-BH61


Pacific Island Fisheries; Swordfish Trip Limits in the American 
Samoa Pelagic Longline Fishery

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule removes the swordfish retention limit in the 
American Samoa deep-set longline fishery. The intent of this rule is to

[[Page 71578]]

eliminate wasteful regulatory discards of marketable seafood, 
increasing efficiency and benefits to the local community and the 
Nation.

DATES: The final rule is effective December 10, 2020.

ADDRESSES: Copies of an environmental analyses and other supporting 
documents for this action are available at https://www.regulations.gov/docket?D=NOAA-NMFS-2019-0123.

FOR FURTHER INFORMATION CONTACT: Sarah Ellgen, NMFS PIR Sustainable 
Fisheries, 808-725-5173.

SUPPLEMENTARY INFORMATION: The Council and NMFS manage the American 
Samoa deep-set longline fishery under the Fishery Ecosystem Plan for 
Pelagic Fisheries of the Western Pacific (FEP) and implementing 
regulations, as authorized by the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act). The fishery targets South 
Pacific albacore, and occasionally catches other pelagic fish, 
including swordfish. In 2011, NMFS implemented FEP Amendment 5, which 
included gear and operational requirements intended to reduce 
interactions with green sea turtles (76 FR 52888, August 24, 2011). 
That rule included a limit of 10 swordfish per trip for vessels over 40 
ft (12.2 m). The limit was intended to discourage switching from deep-
set gear targeting albacore to shallow-set gear targeting swordfish 
because shallow-set fishing may interact more frequently with green sea 
turtles than deep-set fishing due to the depth of the hooks.
    In the years since implementation of that rule, the number of 
swordfish caught per trip has been small, and there has been no 
evidence that longline fishermen have targeted swordfish, nor has there 
been any recent interest in shallow-set fishing in the S. Pacific. From 
2008 through 2018, the average number of swordfish caught was 1.3 fish 
per trip.
    The requirement for vessels over 40 ft (12.2 m) to discard 
swordfish in excess of the 10-fish limit results in wasteful discards, 
lost revenues, and an unnecessary reduction in seafood. Removing the 
swordfish limit allows fishermen to retain a few more swordfish that 
might be caught incidentally during deep-set fishing and are otherwise 
wastefully discarded. This rule maintains existing gear and operational 
safeguards to reduce interactions with green sea turtles. The stock of 
Southwest Pacific swordfish is neither overfished nor subject to 
overfishing. All other management measures (including a limited entry 
program, prohibited fishing areas, fishery observers, logbook 
reporting, vessel monitoring system, and gear and operational 
requirements) will remain in place and continue to apply in the 
fishery.

Comments and Responses

    On June 29, 2020, NMFS published a proposed rule and request for 
public comments (85 FR 38837). The comment period ended July 14, 2020. 
NMFS received seven comments from a total of three submitters and 
responds below.
    Comment 1: The primary goal of this action is to eliminate wasteful 
regulatory discards of swordfish and increase efficiency.
    Response: We have clarified that goal in the environmental 
assessment and the preamble to this final rule.
    Comment 2: The limited amount of discarded swordfish does not 
constitute a reduction in seafood available to the Nation, so the limit 
should be retained.
    Response: Although the amount of swordfish discarded is small, the 
fish have already been caught. Requiring their discard is unnecessarily 
wasteful. This rule considers the importance of supplying fresh fish to 
the American Samoa community by allowing retention of those few fish 
that would otherwise have been discarded.
    Comment 3: Interactions between the fishery and green sea turtles 
are still a problem, so NMFS should retain the swordfish limit because 
it is part of a suite of requirements designed to discourage shallow-
set fishing, which could have a relatively greater impact on green sea 
turtles.
    Response: The suite of gear and operational requirements are the 
primary measures to reduce green sea turtle interactions. They do this 
by ensuring that hooks are set deeper than 100 m, below the depth 
inhabited by the turtles. Those measures remain unchanged and continue 
to afford the intended protections to green sea turtles.
    The swordfish retention limit was an additional safeguard modeled 
on the N Pacific deep-set fishery. The limit was intended to dissuade 
fishermen from switching from typical deep-set gear used to target 
albacore to shallow-set fishing targeting swordfish, with its potential 
for a relatively higher rate of green sea turtle interactions. There is 
no evidence, however, that fishermen have switched to, or are 
interested in, shallow-set fishing for swordfish in the S. Pacific.
    By removing the limit, NMFS is eliminating the negative impacts of 
wasteful discards, while retaining the requirements that benefit green 
sea turtles. The Council and NMFS will continue to monitor the 
fisheries, and if there are indications of interest in shallow-set 
fishing, the Council and NMFS could consider different or additional 
management measures, including the establishment of a well-managed 
shallow-set longline fishery in the S. Pacific.
    Comment 4: Eliminating the swordfish retention limit for fishing 
south of the Equator might incentivize other U.S. longline fisheries to 
shift their fishing location. If NMFS removes the retention limit, the 
rule should apply only to vessels with an American Samoa longline 
limited access permit. The retention limit should remain in place for 
vessels holding Western Pacific general longline permits or Hawaii 
longline limited access permits.
    Response: American Samoa has a very small market demand for fresh 
fish, and limited options to export fresh-frozen fish. Accordingly, it 
is highly unlikely that shallow-set longline fishermen from other areas 
would consider landing their catch in Pago Pago. Also, restricting the 
action to a permit type, rather than fishing location, would not 
directly control where fishermen could land their catch. This is 
because vessels may have multiple permits, which allows them to land 
their catch in Hawaii, American Samoa, or the West Coast. Practical 
constraints, however, such as the travel distance between ports of 
landing with high fuel costs, and the lack of a swordfish market in 
American Samoa, result in distinct fisheries that fish and land their 
catch either in and around American Samoa, or in and around Hawaii and 
California. The gear and operational requirements for fishing south of 
the Equator apply to all U.S. longline fishing, regardless of permit 
type, which continues to protect green sea turtles. The Council and 
NMFS will continue to monitor the fisheries, and if there are 
indications that the normal patterns of fishing and landing locations 
are changing, the Council and NMFS could consider different or 
additional management measures.
    Comment 5: The American Samoa longline fishery has landed catch in 
California, and the identified action area south of the Equator is a 
subset of the area in which the fishery operates. This suggests that 
fishing effort in the eastern Pacific Ocean may have a larger impact on 
leatherback turtles than thought. Thus, NMFS should not finalize the 
rule unless it first completes Endangered Species Act (ESA) 
consultation on the American Samoa fishery.
    Response: Longline vessels based in American Samoa operate almost 
exclusively south of the Equator in the

[[Page 71579]]

western Pacific. From 2008 through 2018, less than one percent of 
fishing effort occurred north of the Equator, and less than one percent 
in the eastern Pacific for vessels that either started or ended fishing 
trips in American Samoa.
    NMFS reinitiated Section 7 consultation on the American Samoa 
longline fishery on April 3, 2019. The reinitiation to consult under 
the ESA was triggered by new ESA-listings and exceedance of the 
incidental take statement (ITS) in the 2015 Biological Opinion (BiOp) 
for green, hawksbill, and olive ridley sea turtles. The 2015 ITS for 
leatherback turtles, however, was not exceeded.
    On May 6, 2020, NMFS completed an updated review of the potential 
effects of the American Samoa longline fishery on listed species during 
the period of consultation under the ESA. In that review, NMFS 
determined that there was no new information that would lead us to 
reconsider the core assumptions and conclusions reached in the 2015 
BiOp for leatherback turtle, South Pacific loggerhead turtle, Indo-West 
Pacific scalloped hammerhead shark, humpback whale, sperm whale, and 
six reef-building corals. As a result, we found that the 2015 BiOp 
remains valid for these species during the period of reinitiated 
consultation.
    Since the publication of the 2015 BiOp, NMFS has received no 
information to believe that eliminating the swordfish retention limit 
will change the conduct of the fishery or that the fishery might cause 
additional harm to the leatherback status during the period of 
consultation. We note that from 2015 until the present, the fishery has 
operated well within the ITS limits in the 2015 BiOp. Additionally, in 
reaching the no jeopardy decision for leatherbacks in the 2015 BiOp, 
NMFS explained that recent research indicated a continual and 
significant decline of the leatherback population. Present data on 
leatherbacks are consistent with this 2015 core assumption, that is, 
that some populations are stable or increasing, but the data also 
indicate that other populations for which information is available are 
either decreasing or have collapsed. Further, because all other 
management measures will continue to apply in the fishery, and because 
we do not expect either a change in the operation of the fishery or the 
number of interactions authorized under the 2015 ITS, we determined 
that the 2015 BiOp remains valid during the period of consultation.
    Comment 6: The 15-day comment period was insufficient.
    Response: The development of the action occurred in public meetings 
of the Council's advisory panels, Science and Statistical Committee, 
and the Council, itself, over several years. The Council provided 
notice of the rulemaking in local media releases, newsletter articles, 
and on the Council's website. Nonetheless, a comment period of 15 days 
is expressly allowed by section 304(b) of the Magnuson-Stevens Act.
    Comment 7. The proposed rule alters the FEP, so the Council should 
prepare a plan amendment and NMFS should accept public comment for a 
60-day period.
    Response. This rule implements a regulatory amendment, i.e., a 
change to existing regulations, and the Council is not required to 
amend the FEP, consistent with sections 303(c) and 304(b) of the 
Magnuson-Stevens Act.

Changes From the Proposed Rule

    This final rule contains no changes from the proposed rule.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the FEP, other provisions of the Magnuson-Stevens Act, 
and other applicable law.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. NMFS did not receive any 
comments regarding this certification. As a result, a regulatory 
flexibility analysis was not required and none was prepared.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule is considered an Executive Order 13771 deregulatory 
action.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Longline, Pacific Islands, Seafood, Swordfish.

    Dated: November 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 amends 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. In Sec.  665.813, revise paragraph (k) introductory text and remove 
paragraph (k)(5) to read as follows:


Sec.  665.813  Western Pacific longline fishing restrictions.

* * * * *
    (k) South Pacific longline requirements. When fishing south of the 
Equator (0[deg] lat.) for western Pacific pelagic MUS, owners and 
operators of vessels longer than 40 ft (12.2 m) registered for use with 
any valid longline permit issued pursuant to Sec.  665.801 must use 
longline gear that is configured according to the requirements in 
paragraphs (k)(1) through (4) of this section.
* * * * *

[FR Doc. 2020-24752 Filed 11-9-20; 8:45 am]
BILLING CODE 3510-22-P