[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 73003-73006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25200]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 201109-0298]
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: Temporary rule; interim measures.

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

SUMMARY: This temporary rule implements an interim catch limit (ICL) of 
13,000 lb of American Samoa bottomfish for fishing years 2020 and 2021 
during the effective period of the rule. NMFS will monitor catches, and 
if the fishery reaches the ICL within a fishing year, we will close the 
fishery in Federal waters through the end of the fishing year, or 
through the end of the effective period of this rule, whichever comes 
first. These interim management measures are necessary to reduce 
overfishing of American Samoa bottomfish while minimizing socio-
economic impacts to fishing communities. This temporary rule supports 
the long-term sustainability of American Samoa bottomfish.

DATES: Effective November 16, 2020, through May 17, 2021.

ADDRESSES: Copies of the Fishery Ecosystem Plan for the American Samoa 
Archipelago (FEP) are available from the Western Pacific Fishery 
Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 
96813, tel 808-522-8220, or www.wpcouncil.org.
    NMFS prepared an environmental assessment (EA) that describes the 
potential impacts on the human environment that could result from this 
temporary rule. The EA and other supporting documents are available 
from www.regulations.gov/docket?D=NOAA-NMFS-2020-0099.

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

SUPPLEMENTARY INFORMATION: NMFS and the Western Pacific Fishery 
Management Council (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

[[Page 73004]]

management measures for the fishery are found at 50 CFR 665.
    In 2019, the NMFS Pacific Islands Fisheries Science Center (PIFSC) 
completed a benchmark stock assessment that indicated that the multi-
species bottomfish stock complex in American Samoa is overfished and 
experiencing overfishing. Consistent with Magnuson-Stevens Act sections 
304(e)(6) and 305(c), the Council requested that NMFS implement an 
interim measure to reduce overfishing of the stock while the Council 
develops management measures required by section 304(e)(3). This 
temporary rule implements an interim catch limit (ICL) of 13,000 lb of 
American Samoa bottomfish for the fishing year. We originally proposed 
the rule would be effective only during fishing year 2020. This final 
rule revises the proposed effective period of this measure so that it 
will remain in effect for 180 days or until replaced, consistent with 
Magnuson-Stevens Act section 305(c), to ensure that the measure is 
continuous with any subsequent extension. Thus, the catch limit of 
13,000 lb will apply for fishing year 2020, and for fishing year 2021 
until the measure expires or is replaced.
    As an in-season accountability measure, if NMFS projects that the 
fishery will reach the ICL, we would close the fishery in Federal 
waters through the end of the fishing year in which the ICL is reached, 
or the end of the effective period of this rule, whichever comes first. 
To maintain consistency with the timeframe of catch projections from 
the stock assessment and the bottomfish fishing year (January-
December), NMFS will monitor catches of bottomfish management unit 
species (MUS) made in both territorial and Federal waters during the 
fishing year and will count the combined catch toward the ICL for that 
year. Under the interim measure, overfishing will be reduced relative 
to the status quo, and socio-economic impacts to the community will be 
minimized relative to measures that would have ended overfishing 
immediately.
    You may find additional background information on this action in 
the preamble to the proposed temporary rule published on September 11, 
2020 (85 FR 56208).

Comments and Response

    On September 11, 2020, NMFS published a proposed rule, an EA, and 
regulatory impact review for public comment (85 FR 56208). The comment 
period ended September 28, 2020. NMFS received comments from three 
individuals, the American Samoa Department of Marine and Wildlife 
Resources (DMWR) and the Western Pacific Fishery Management Council, 
and responds below.
    Comment 1: The temporary catch limit and accountability measures 
are reasonable to balance the need to reduce overfishing while 
minimizing the impact to economic, cultural, and subsistence fishing. 
One of the regulatory conditions for implementing interim measures is 
that following the recommendations for ending overfishing immediately 
would be ``expected to result in severe social and/or economic 
impacts.'' This condition is met, and is evidenced by the comments made 
by American Samoan fishermen and council members at public Council 
meetings, which indicated that even the higher ICL of 13,000 lb would 
inhibit subsistence fishing. Their comments also indicated that the 
potential closure of the Federal offshore banks as a result of reaching 
the 13,000 lb ICL would further inhibit subsistence fishing and 
cultural practices due to the lack of access to ``important fishing 
grounds for deep-water snappers that are critical for cultural 
ceremonies.'' Overall, the proposed rule would have positive impacts on 
American Samoa bottomfish stocks, while not completely inhibiting the 
livelihood of American Samoan fishermen and residents.
    Response: NMFS agrees.
    Comment 2: The calculation methods used to assess the condition of 
the bottomfish stocks are not accurate, and new methods are needed to 
monitor fish catches and collect fishery data, including a self-
reporting device developed by the Council.
    Response: The methods and data used to assess the condition of the 
American Samoa bottomfish fishery and to develop the interim measure 
are the best available scientific and commercial information on the 
status of the stocks. The 2019 benchmark stock assessment completed by 
NMFS PIFSC used all available information about the fishery and applied 
the overfishing status determination criteria established in the FEP to 
evaluate stock status, and all components of the assessment were 
evaluated and analyzed for applicability and appropriateness for use. 
Moreover, consistent with the Magnuson-Stevens Act and regulations at 
50 CFR 600.315 for scientific information, the assessment was 
independently peer reviewed through the Western Pacific Stock 
Assessment Review (WPSAR) process, which found that the results and 
conclusions were reliable and useful for management purposes based on 
information available at the time.
    Fishermen's concerns regarding the stock assessment methodologies 
and reliability of the fisheries data were presented and discussed at 
the October 2019 meeting of the Council's Scientific and Statistical 
Committee (SSC) in Honolulu, Hawaii, and October 2019 Council meeting 
in Pago Pago, American Samoa. The SSC and Council, nonetheless, 
accepted the stock assessment as providing the best scientific 
information available for management purposes. Accordingly, in January 
2020, PIFSC determined the 2019 assessment is the best scientific 
information available for the fishery.
    NMFS recognizes that the Council is exploring new and other 
methodologies to improve fisheries data in American Samoa and other 
U.S. territories. As part of a coordinated approach to improve 
fisheries information, NMFS, in collaboration with the Council, DMWR, 
and other resource management agencies have developed a Marine 
Recreational Implementation Plan for the Pacific Islands Region (MRIP-
PIR). This plan identifies priority needs and actions associated with 
understanding and management of the non-commercial fishery in the 
state/territorial and Federal waters in 2018-2022. These include:
    1. A programmatic review of the Territory creel surveys;
    2. Full funding for the surveys that meets the minimum survey 
standards for Hawaii, American Samoa, and the Mariana Archipelago, 
including expansion of spatial and temporal surveys, and additional 
technical support for data entry and database management;
    3. Improved timeliness of non-commercial catch estimates;
    4. Development of an algorithm that extracts the non-commercial 
component of the total creel survey catch estimates; and
    5. Development of mobile data entry system to support near-real 
time reporting.
    Comment 3: The DMWR noted that the previous stock assessment before 
the current one indicated that bottomfish stocks were healthy, and 
questioned how the fishery can be subject to overfishing and overfished 
with low numbers of fishery participants. The DMWR does not feel that 
the assessment accurately captured the nature of the fishery, and 
requested that NMFS re-examine the assessment methodology, including 
whether the DMWR data collection systems are appropriate for such 
methods.
    Response: The previous assessment completed by PIFSC in 2016 was 
replaced by a new benchmark

[[Page 73005]]

assessment in 2019. Several changes relative to the previous assessment 
were incorporated into the 2019 benchmark assessment. These include 
using new species lists, calculating the percentage of catch reported 
at the family or species-group level and believed to contain bottomfish 
management unit species, filtering catch per unit effort (CPUE) based 
on gear, standardizing the CPUE for covariates that may affect the 
catch rate, removing independently-estimated maximum sustainable yield 
values from the model fitting process, and including an improved 
production model parameterization. An independent panel of fisheries 
scientists reviewed the 2019 assessment and concluded that it is 
superior to the previous assessment. PIFSC, the Council and its SSC 
concluded that the 2019 assessment represents the best scientific 
information available for the American Samoa bottomfish fishery. The 
DMWR has not identified any superior information that NMFS failed to 
consider when it determined the stock assessment was the best 
scientific information available, so based on the best scientific 
information available NMFS determined that the fishery is subject to 
overfishing and is overfished, and developed the interim measure to 
reduce overfishing while the Council develops and NMFS implements long-
term management measures to end overfishing and rebuild the stock. For 
the next assessment, NMFS anticipates that MRIP-PIR will improve 
fishery data to allow consideration of alternative methods for 
assessing the condition of the fishery. See also response to Comment 2.
    Comment 4: The DMWR believes that the 13,000 lb ICL is too low for 
American Samoa fishermen to subsist, and does not support closing 
Federal waters to bottomfish fishing, especially the productive 
offshore banks, which the DMWR asserts are important fishing grounds 
for deepwater snappers that are critical for American Samoan cultural 
ceremonies and fa`alavelave. Instead, they propose that DMWR develop a 
territorial bottomfish management plan in coordination with NMFS that 
includes data workshops to fully understand the fishery and 
incorporates cultural aspects of the fishery. They also requested 
flexibility in the national guidelines.
    Response: The best scientific information available indicates that 
the fishery is subject to overfishing and is overfished. This temporary 
action, which includes a potential closure of Federal waters to prevent 
the fishery from exceeding the limit, is needed to reduce overfishing 
while the Council and NMFS develop a plan that ends overfishing and 
rebuilds the stock. NMFS expects that the level of catch under this 
temporary action will still allow American Samoan bottomfish fishermen 
to continue to provide enough fish for subsistence, cultural, and 
religious purposes. Overall, the interim action provides a balance 
between the statutory requirement to reduce overfishing and the needs 
of the fishery and dependent communities for continued access to 
bottomfish. NMFS is committed to working with DMWR and the Council to 
address the condition of the fishery, which may include consideration 
of a bottomfish management plan for territorial waters. See also 
response to Comments 1-3.
    Comment 5: The DMWR also requested that NMFS examine whether 
changes in the priority species of management and other aspects of the 
analysis have changed the status of the fishery.
    Response: The 2019 assessment evaluated species that remained as 
management unit species after the ecosystem reclassification action. 
The WPSAR panel investigated the impact of changes in the management 
unit species and found that it did not have significant effects on the 
assessment results. The panel concluded that changes in the assessment 
were improvements over the previous assessment, which supported the 
determination that the assessment is the best scientific information 
available for management.
    Comment 6: The Council expressed general support for the action, 
but noted concerns about the data used in the 2019 stock assessment, 
how the WPSAR review addressed data uncertainty, and suggested options 
for improving data used for future assessments.
    Response: The data used for the assessment comes from two programs 
conducted by the DMWR in collaboration with the NMFS Western Pacific 
Fisheries Information Network (WPacFIN): Creel surveys and the 
commercial purchase database program. The stock assessment authors 
considered, but rejected, using other data sources, such as the WPacFIN 
biosampling program and the Federal permit logbook dataset, due to 
insufficient years of data or low reporting rates. The SSC expressed 
concern about the reliability of data from the creel surveys and 
commercial dealer program, but did not identify a superior data source. 
Thus, the data relied on for the assessment are considered the best 
scientific information available. Moreover, the assessment was reviewed 
by an independent panel of experts under the WPSAR process and the SSC, 
and was endorsed by these groups and NMFS as the best scientific 
information available. NMFS looks forward to working with the Council 
and the DMWR to develop a long-term plan to end overfishing and rebuild 
the stock. See also responses to Comments 1-4.
    Comment 7: Implementation of the interim measure will be 
challenging, given that the majority of fishing activity is believed to 
take place in territorial waters, and that existing monitoring was not 
designed for in-season tracking. The Council is working with the DMWR 
to develop a Territorial Bottomfish Fishery Management Plan, which 
would allow parallel management of the bottomfish management unit 
species between territorial and Federal waters.
    Response: NMFS will work with DMWR to encourage timely processing 
of data, and will track all catches in Federal and territorial waters 
toward any applicable limit when data are provided to NMFS. While NMFS 
cannot implement a closure in territorial waters, we will still monitor 
and account for catch that comes from territorial waters. NMFS agrees 
that the efficacy of the measure could be improved if the Territory 
implemented parallel management. See also response to Comment 8.
    Comment 8: There should be an additional proposal to monitor 
species of fish, especially those that have been over-fished, in 
territorial waters to gain a better estimate for catch limits, and to 
assess the costs and benefits regarding economics and biological 
sustainability.
    Response: The creel surveys and commercial receipt program 
conducted by DMWR in collaboration with NMFS collect fisheries data in 
both territorial and Federal waters, so current management already 
includes the suggested measures. The information is used in stock 
assessments that evaluate the effects of fishing and management on the 
bottomfish stock as a whole, and are also used to assess potential 
social, cultural, and economic impacts in the EA.
    Comment 9: While a catch limit is appropriate for American Samoa 
bottomfish for the remainder of 2020, the limit of 13,000 lb may be 
inappropriate because, although this number may be regulated in Federal 
waters, most (85%) bottomfish live in territorial waters, which are 
unregulated by the NMFS.
    Response: The bottomfish stock in American Samoa is assessed as a 
single unit across the archipelago, including territorial and Federal 
waters. Similarly,

[[Page 73006]]

the 13,000 lb catch limit covers bottomfish in both areas. NMFS will 
monitor catch in territorial and Federal waters relative to the 13,000 
lb ICL, but does not have jurisdiction to restrict catch in territorial 
waters. NMFS agrees that the efficacy of the measure could be improved 
if the Territory implemented parallel management.
    Comment 10: The effects of overfishing need to be mitigated, 
especially for a species that has previously been recorded to 
experience overfishing.
    Response: NMFS agrees that the effects of overfishing need to be 
mitigated, and developed this rule to accomplish that goal. We note, 
however, that previous stock assessments did not conclude that the 
stock is experiencing overfishing; the current overfishing status was 
first determined by NMFS in 2020.

Changes From the Proposed Rule

    The proposed rule would have been effective during fishing year 
2020 only. This final rule is effective for 180 days. We are making 
this change under Section 305(c) of the Magnuson-Stevens Act so that 
this rule is effective for 180 days, or until replaced, to ensure that 
the measure is continuous with any subsequent extension.

Classification

    NMFS is issuing this temporary rule pursuant to section 304(e)(6) 
and section 305(c) of the Magnuson-Stevens Act, which provide specific 
authority for implementing this action to address overfishing in 
response to a request from the Council. The NMFS Assistant 
Administrator has determined that this temporary rule is consistent 
with the FEP, 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.

Administrative Procedure Act

    The Assistant Administrator Fisheries, NOAA (AA) finds it is 
contrary to the public interest to provide for a 30-day delay in 
effectiveness of this temporary rule. The need to implement the interim 
rule in a timely manner to reduce overfishing constitutes ``good 
cause'' under authority contained in 5 U.S.C. 553(d)(3) to make the 
rule effective immediately upon publication in the Federal Register. 
The fishery is experiencing overfishing, and management measures are 
needed to reduce catch to mitigate immediate effects of fishing on the 
stock and long-term effects on the fishing community while the stock is 
rebuilding. Specifically, the temporary 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.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This rule is not an Executive Order 
13771 regulatory action because this rule is not significant under 
Executive Order 12866.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 665

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

    Dated: November 10, 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. 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 
the fishing year 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 or the end of the 
effective period of this rule, whichever comes first.
    (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, stay the introductory paragraph, add paragraph (a) 
and add 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 
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. 2020-25200 Filed 11-13-20; 8:45 am]
BILLING CODE 3510-22-P