[Federal Register Volume 87, Number 24 (Friday, February 4, 2022)]
[Proposed Rules]
[Pages 6479-6482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02350]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 20131-0037]
RIN 0648-BK79


Pacific Island Fisheries; Rebuilding Plan for the American Samoa 
Bottomfish Fishery

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: NMFS proposes to implement a rebuilding plan that includes 
annual catch limits (ACL) and accountability measures (AM) for the 
overfished bottomfish stock complex in American Samoa. This action is 
necessary to end overfishing and rebuild the overfished stock 
consistent with the requirements of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).

DATES: NMFS must receive comments by March 21, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2022-0006, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0006, in the Search box. 
Click the ``Comment'' 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: NMFS may not consider comments sent by any other 
method, to any other address or individual, or received after the end 
of the comment period. 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 Western Pacific Fishery Management Council (Council) prepared 
Amendment 5 to the Fishery Ecosystem Plan for the American Samoa 
Archipelago (FEP), which includes a draft environmental assessment (EA) 
and Regulatory Impact Review. Copies of Amendment 5 and other 
supporting documents are available at www.regulations.gov, or from the 
Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-
8220, www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Heather Cronin, NMFS PIR Sustainable 
Fisheries, 808-725-5179.

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the American 
Samoa bottomfish fishery under the FEP and implementing regulations. 
The fishery primarily targets and harvests a complex of 11 bottomfish 
management unit species (BMUS), which includes emperors, snappers, 
groupers, and jacks. Bottomfish are typically harvested in deep waters, 
though some species are caught over reefs at shallower depths. Most (85 
percent) bottomfish habitat is in territorial waters (generally from 
the shoreline to 3 nautical miles (5.6 km) offshore), with the rest in 
Federal waters (i.e., the U.S Exclusive Economic Zone) around offshore 
banks. Fishing for bottomfish in American Samoa primarily occurs within 
20 mi (32.2 km) from shore using aluminum catamarans less than 32 ft 
(9.7 m) long, known locally as alia.
    The Council and NMFS only have the authority to develop and 
implement fishery management regulations in Federal waters, and the 
American Samoa Government has the authority to implement fishery 
management measures in territorial waters. Bottomfish fishermen in 
American Samoa are not required to obtain a Federal permit to fish for 
BMUS or to report their BMUS catch to NMFS. The American Samoa 
Department of Marine and Wildlife Resources collects fishery catch 
information from fishermen through voluntary creel surveys, and 
commercial sales data from the mandatory commercial receipt book 
program. There are no territorial permitting requirements to fish for 
bottomfish in territorial waters.
    The fishery is relatively small, with fewer than 20 participants in 
the fishery (86 FR 3028, January 14, 2021), and primarily non-
commercial, but it is still of importance to the local economy, and 
from social, cultural, and food security standpoints. In the past 20 
years, the estimated total catch has varied from a high of 42,301 lb 
(19,187 kg) in 2001 to a low of 7,688 lb (3,487 kg) in 2012. The

[[Page 6480]]

average catch from 2018-2020 was 12,687 lb (5,755 kg), with 965 lb (438 
kg) attributed to the commercial fishery and the 11,722 lb (5,317 kg) 
attributed to the non-commercial sector. In 2020, the commercial price 
was $3.48/lb ($7.67/kg) and the estimated fishery revenue was $4,018.
    On February 10, 2020, NMFS notified the Council that the American 
Samoa bottomfish stock complex was overfished and subject to 
overfishing (85 FR 26940, May 6, 2020). Consistent with section 304(e) 
of the Magnuson-Stevens Act and implementing regulations at 50 CFR 
600.310(j), the Council must prepare, and NMFS must implement, a 
rebuilding plan within two years of the notification. The rebuilding 
plan must specify the timeframe for rebuilding the stock complex's 
biomass to a level that is capable of producing maximum sustainable 
yield (BMSY). The rebuilding timeframe must be as short as 
possible, taking into account the status and biology of the overfished 
stock, the needs of fishing communities, and the interaction of the 
overfished stock of fish within the marine ecosystem and cannot exceed 
10 years, except in cases where the biology of the stock of fish, other 
environmental conditions, or management measures under an international 
agreement in which the United States participates dictate otherwise. 
The rebuilding must also have at least a 50 percent probability of 
attaining the BMSY, where such probabilities can be 
calculated.
    If approved, Amendment 5 would implement a rebuilding plan for the 
American Samoa bottomfish stock complex that consists of an ACL and two 
AMs. We would set the ACL 5,000 lb (2,268 kg) starting in 2022. Because 
NMFS is obligated to manage the stock throughout its range, and the 
complex exists in both territorial and Federal waters, we would count 
harvests from territorial and Federal waters toward the ACL. Note, 
however, that existing data collection programs do not differentiate 
catch from territorial versus Federal waters. The fishing year is the 
calendar year.
    As an in-season AM, if NMFS projects that the fishery will reach 
the ACL in any year, then we would close the fishery in Federal waters 
for the remainder of that year. At this time, the American Samoan 
Government does not have regulations in place to implement a 
complementary closure in territorial waters at the same time as a 
Federal closure. Therefore, NMFS expects there could continue to be 
fishing in territorial waters even after a closure of the bottomfish 
fishery in Federal waters, and this could offset the potential 
conservation benefits of restricting bottomfish harvest in Federal 
waters. As an additional AM, if the total annual catch (which includes 
catch from both Federal and territorial waters) exceeds the ACL during 
a year, we would close the fishery in Federal waters until NMFS and the 
Territory of American Samoa implement a coordinated management regime 
to ensure that the catch in both Federal and territorial waters is 
maintained at levels that allow the stock to rebuild. The rebuilding 
plan would remain in place until NMFS determines that the stock complex 
is rebuilt, which is expected to take 10 years if catches are 
maintained at the specified level. This rebuilding plan was selected 
because it allows for the least disruption to the fishing community and 
minimizes negative socio-economic impacts while still rebuilding the 
stock complex within the 10-year period required by the Magnuson-
Stevens Act. NMFS and the Council would review the rebuilding plan 
routinely every two years and modify it, as necessary, per section 
304(e)(7) of the Magnuson-Stevens Act.
    NMFS must receive comments on this proposed rule by the date 
provided in the DATES section. NMFS is also soliciting comments on 
proposed Amendment 5; see the Notice of Availability (NOA) published on 
Date (FR citation). NMFS must receive comments on the NOA by Date. NMFS 
may not consider any comments not postmarked or otherwise transmitted 
by that date. NMFS will consider comments on both the NOA and this 
proposed rule in our decision to approve, disapprove, or partially 
approve Amendment 5. NMFS specifically invites public comments that 
address the impact of the proposed rule and Amendment 5 on cultural 
fishing in American Samoa.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed action 
is consistent with the FEP, other provisions of the Magnuson-Stevens 
Act, and other applicable laws, subject to further consideration after 
public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    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. 
A description of the proposed action, why it is being considered, and 
the legal basis for it are contained in the preamble to this proposed 
rule.
    The American Samoa bottomfish fishery is primarily a non-commercial 
fishery and is relatively small, with fewer than 20 participants, many 
of whom also participate in other fisheries such as troll and small-
scale longline. Since 2011, percent of catch sold ranged from 2.9 
percent in 2011 to 15.4 percent in 2014. In 2020, fishermen sold 3.2 
percent of bottomfish catch. Fishing for bottomfish primarily occurs 
using aluminum alia catamarans less than 32 ft (9.7 m) in length that 
are outfitted with outboard engines and wooden hand reels that 
fishermen use for both trolling and bottomfish fishing. The demand for 
bottomfish on American Samoa varies depending on the need for fish at 
community events, and alia fishermen may switch to bottomfish fishing 
during periods when target longline catches or prices are low. Between 
2018 and 2020, the bottomfish catch averaged 12,587 lb (5,709 kg) with 
7.2 percent sold, with remaining catch likely to be non-commercial 
catch, kept for personal consumption or shared within the community. In 
2020, the most recent year for which catch data are available, the 
total estimated annual catch of American Samoa BMUS was 9,592 lb (4,350 
kg), with commercial catch an estimated 307 lb (139 kg). Using the 
average bottomfish price in 2020 of $3.48/lb ($7.67/kg), 2020 
bottomfish revenue is estimated to be $1,067. However, the 2020 price 
for bottomfish was lower than the average prices for 2017 ($5.11), 2018 
($4.25), 2019 ($4.24). Using the most recent 3-year average catch of 
bottomfish (12,587 lb or 5,709 kg) and the 2020 bottomfish price per 
pound ($3.48/lb or $7.67/kg), NMFS estimates the expected annual total 
revenue of the fishery to be $3,179. Under this scenario, the expected 
annual revenue for each of the 20 participants of this fishery from 
commercial bottomfish catch is $159. If NMFS were to apply a higher 
price to the analyses, estimated revenues and revenue losses would be 
higher.
    Under the proposed action, with an ACL of 5,000 lb (2,269 kg) and 
an in-season AM to close Federal waters upon reaching the ACL for the 
bottomfish fishery in American Samoa, NMFS expects the fishery to 
exceed the ACL within the first half of the year. The reduction in 
catch because of this action could be offset if fishing effort in 
Federal waters relocates to territorial waters (assuming that the 
American Samoa government does not implement complementary measures in 
territorial waters). Without complementary

[[Page 6481]]

management in place, NMFS expects the fishery to land 11,534 lb (5,231 
kg) or more in 2022, which would exceed the ACL. As a result, Federal 
waters would close. However, even after a closure of Federal waters, 
NMFS expects the fishery to land 10,784 lb (4,891 kg) or more from 
territorial waters. The expected catch would depend on the level of 
fishing activity transferring to territorial waters, once the in-season 
closure occurs. If all fishing effort that would have been conducted in 
Federal waters moves to territorial waters, catch could be closer to 
levels when the fishery had not been constrained by a limit. However, 
if post-closure fishing effort in Federal waters does not move to 
territorial waters, then implementing the proposed action would result 
in a potential reduction of 1,153 lb (523 kg) in catch in 2022 and 
1,903 lb (863 kg) for every subsequent years of the rebuilding plan 
compared to the status quo. The estimated fleetwide bottomfish revenue 
during the first year of implementing the rebuilding plan could be as 
low as $2,888. Under this scenario, the 20 participants would earn 
approximately $144 each. For subsequent years, fleetwide revenue could 
be as low as $2,702 ($135 per participant). These would represent 
reduction in bottomfish revenue of $15 in 2022 and $24 for subsequent 
years, compared to the status quo. Fishermen could offset loss in 
revenue by selling some of their catch that had been intended to be 
retained or shared (non-commercial catch) or by relocating fishing 
effort to territorial waters which are likely to remain open.
    The fishery is not expected to substantially change the way it 
fishes with respect to fishing gear, fishing effort, participation, or 
intensity, but may change slightly with respect to total catch and 
areas fished, with the fishermen who would normally choose to fish in 
Federal waters being affected more adversely. Larger impacts would 
occur if the American Samoa government implemented a complementary 
closure in territorial waters with expected fleetwide catch of 5,000 lb 
the first year (2,269 kg) and no bottomfish catch during subsequent 
years until a coordinated management approach is developed that ensures 
catch in both Federal and territorial waters can be maintained at 
levels that allow the stock to rebuild. While limiting total bottomfish 
catches annually may result in short-term economic impacts to fishery 
participants, rebuilding stock biomass to BMSY is expected 
to increase the exploitable biomass which, in turn, is expected to 
provide for long-term sustainability of fishery resources while 
allowing fishery participants to continue to benefit from their use.
    NMFS has established a small business size standard for businesses, 
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 
vessels subject to the proposed action are small entities, i.e., they 
are engaged in the business of finfish harvesting (NAICS code 114111), 
are independently owned or operated, are not dominant in their field of 
operation, and have annual gross receipts not in excess of $11 million. 
Even though this proposed action would apply to a substantial number of 
vessels, the implementation of this action would not result in 
significant adverse economic impact to individual vessels.
    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. There does not appear to be disproportionate adverse 
economic impacts from the proposed rule based on home port, gear type, 
or relative vessel size. The proposed rule will not place a substantial 
number of small entities, or any segment of small entities, at a 
significant competitive disadvantage to large entities. As a result, an 
initial regulatory flexibility analysis is not required and none has 
been prepared.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR 665

    Administrative practice and procedure, American Samoa, Bottomfish, 
Fisheries, Fishing, Pacific Islands.

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


    Dated: January 31, 2022.
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. Revise Sec.  665.103 to read as follows:


Sec.  665.103  Prohibitions.

    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:
    (a) Fish for American Samoa bottomfish MUS or ECS using gear 
prohibited under Sec.  665.104.
    (b) Fish for or possess any American Samoa Bottomfish MUS as 
defined in Sec.  665.101 after a closure of the fishery in violation of 
Sec.  665.106.
    (c) Sell or offer for sale any American Samoa Bottomfish MUS as 
defined in Sec.  665.101 after a closure of the fishery in violation of 
Sec.  665.106.
0
3. Add Sec.  665.106 to read as follows:


Sec.  665.106   American Samoa Annual Catch Limits (ACL).

    (a) In accordance with Sec.  665.4, the ACL for American Samoa 
bottomfish MUS is 5,000 lb.
    (b) When NMFS projects the ACL will 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 catch limit is reached.
    (c) If the ACL is exceeded in any fishing year, 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. The fishery will remain closed until 
such time that a coordinated approach to management is developed that 
ensures catch in both Federal and territorial waters can be maintained 
at levels that allow the stock to rebuild or the rebuilding plan is 
modified based on the best scientific information available.
    (d) On and after the date the fishery is closed as specified in 
paragraphs (b) or (c) of this section, fishing for and possession of 
American Samoa

[[Page 6482]]

bottomfish MUS is prohibited in the American Samoa fishery management 
area, except as otherwise authorized by law.
    (e) On and after the date the fishery is closed as specified in 
paragraphs (b) or (c) of this section, the sale, offering for sale, and 
purchase of any American Samoa bottomfish MUS caught in the American 
Samoa fishery management area is prohibited.

[FR Doc. 2022-02350 Filed 2-3-22; 8:45 am]
BILLING CODE 3510-22-P