[Federal Register Volume 87, Number 84 (Monday, May 2, 2022)]
[Rules and Regulations]
[Pages 25590-25594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09339]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 220425-0105]
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: Final rule.

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SUMMARY: This final rule implements 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 rebuild the overfished stock consistent with the 
requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: The final rule is effective June 1, 2022.

ADDRESSES: Copies of Amendment 5, including an Environmental Assessment 
and Regulatory Impact Review, and other supporting documents for this 
action are available at https://www.regulations.gov/document/NOAA-NMFS-2022-0023-0006.

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

SUPPLEMENTARY INFORMATION: NMFS and the Western Pacific Fishery 
Management Council (Council) manage the American Samoa bottomfish 
fishery under the American Samoa Fishery Ecosystem Plan (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

[[Page 25591]]

(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.
    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.
    Amendment 5 implements a rebuilding plan for the American Samoa 
bottomfish stock complex that consists of an ACL, and in-season AM, and 
a higher performance standard should the fishery exceed the ACL. The 
rebuilding plan implements an ACL of 5,000 lb (2,268 kg) starting in 
2022. NMFS is obligated to manage the stock throughout its range, and 
the complex exists in both territorial and Federal waters. Therefore, 
we would count harvests from territorial and Federal waters toward the 
ACL. However, existing data monitoring 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, American Samoa has not 
developed regulations to implement complementary management to restrict 
catch in territorial waters if the ACL is reached, and it is not 
reasonably certain they will implement complementary management 
measures in the future. Accordingly, as a higher performance standard, 
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 approach to ensure that catch 
in 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. The 
Council and NMFS selected the 5,000 lb ACL because it is the maximum 
catch that allows the bottomfish stock to rebuild within the ten-year 
timeframe permitted under the Magnuson-Stevens Act. This level of catch 
also helps to minimize cultural, economic and social effects of the 
rebuilding plan on communities in American Samoa. 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.
    You may find additional background information on this action in 
the preamble to the proposed rule (87 FR 6470, February 4, 2022).

Comments and Responses

NOA

    On January 21, 2022, NMFS published the notification of 
availability (NOA) for Amendment 5 and request for public comments (87 
FR 3276); the comment period ended March 22, 2022. NMFS received 
comments from two individuals on Amendment 5 and responds below.
    Comment 1: Overfishing is of great concern, and it especially 
impacts indigenous people. This rebuilding plan addresses key concerns 
in the American Samoan bottomfish fishery. I support that once the 
annual catch limit is reached, the fishery would close in Federal 
waters for the remainder of the year. Catch rates must decrease to 
allow the fish population to replenish.
    Response: NMFS agrees, and we will continue to manage the 
bottomfish stock complex in Federal waters to perpetuate sustainable 
fisheries resources for communities in American Samoa, consistent with 
the Magnuson-Stevens Act, the FEP and implementing regulations.
    Comment 2: NMFS should ensure that recreational and sport fishing 
is distinguished from indigenous cultural fishing. If NMFS seeks to 
further limit fishing, recreational and sport fishing should be closed 
and considered separate from fishing by indigenous people.
    Response: Bottomfish fishing in American Samoa is part of fa'a 
Samoa, or ``the Samoan way.'' It is an integral part of culture and 
daily life, and there are not distinct recreational or sport fisheries 
for bottomfish. Accordingly, bottomfish are managed under a single ACL 
that does not distinguish between fishery sectors (e.g., commercial, 
recreational, subsistence). While the rebuilding plan will limit 
fishing, it will not do so in a way that disproportionately affects 
indigenous peoples or other groups. NMFS does not expect this action to 
substantially change the way the fishery operates with respect to 
fishing gear, fishing effort, participation, or intensity. If the ACL 
is attained and fishing is closed in Federal waters, some fishing 
activity may move into territorial waters, but NMFS does not expect 
substantial changes with respect to the availability of fish for 
cultural, subsistence or commercial purposes. Rebuilding the bottomfish 
stock will ensure that fishery resources are available for future 
generations.
    Comment 3: NMFS should be actively consulting with the American 
Samoa Government and should ensure that indigenous fishing communities 
have leadership and power in decision-making in regard to conservation 
and fishery rebuilding plans.
    Response: We agree. The process of developing fishery management 
actions places a strong emphasis on inclusive and equitable community 
input from indigenous and other stakeholders. The community has 
opportunity for both direct and representative input at multiple 
points. American Samoa leadership and stakeholders participate in 
decision-making processes through American Samoa representatives on the 
Council and its Scientific and Statistical Committee, Council advisory 
panels, public input during Council deliberations, and through public 
comment periods during NMFS rulemaking processes. NMFS and the Council 
work closely with communities and the government of American Samoa 
through their Council members and representatives on other Council 
advisory bodies to ensure that community needs and concerns are heard 
and addressed.
    Comment 4: This rule could be stronger if supplemented by one that 
allows for closures of territorial waters.
    Response: While NMFS agrees that a coordinated approach to 
management in territorial and Federal waters might produce a more 
effective rebuilding plan, NMFS does not have the authority to restrict 
catch in territorial waters. NMFS will monitor catch in territorial and 
Federal waters relative to the ACL, and will continue to work with our 
management partners at the American Samoa Department of Marine and 
Wildlife Resources (DMWR) to improve fisheries management of bottomfish 
in American Samoa.
    Comment 5: It would be incredibly hard to enforce these closures. 
Fishing can be expected to take place that will go unreported.
    Response: While a catch limit which results in a fishery closure 
may present a disincentive for fishermen to report their catch, we work 
with our management partners at the Council and DMWR to educate 
fisherman about the importance of timely and accurate

[[Page 25592]]

reporting. As needed, NOAA's Office of Law Enforcement and the U.S. 
Coast Guard enforce Federal fisheries rules. They conduct enforcement 
activities both on and off the water, and conduct related criminal and 
civil investigations. The Enforcement Section of the NOAA Office of 
General Counsel provides legal support to the NOAA Office of Law 
Enforcement and other NOAA offices, and prosecutes cases.

Proposed Rule

    On February 4, 2022, NMFS published a proposed rule and request for 
public comments (87 FR 6479); the comment period ended March 21, 2022. 
NMFS received comments from seven individuals, the American Samoa 
Department of Marine and Wildlife Resources, and the Governor of 
American Samoa. NMFS responds below.
    Comment 1: Although these actions could harm the local economy in 
the short-term, there is a much larger long-term incentive to American 
Samoa by rebuilding the bottomfish stock. If the new regulations are 
followed, bottomfish would repopulate, and fishermen would be able to 
benefit from the fish long-term.
    Response: NMFS agrees. The Council and NMFS selected the 5,000 lb 
ACL because this level of catch helps to minimize cultural, economic 
and social effects of the rebuilding plan on communities in American 
Samoa. It is also the maximum catch that allows the bottomfish stock to 
rebuild within the ten-year timeframe permitted under the Magnuson-
Stevens Act.
    Comment 2: The DWMR and individual commenters note the importance 
of the fishery to indigenous communities, and express concern about the 
short-term impact for people that rely on fishing as a main food source 
or economic stability.
    Response: In selecting a management approach, NMFS and the Council 
balanced potential short-term effects with the need to rebuild the 
bottomfish stock to ensure that these species are available for future 
generations. NMFS and the Council discussed these concerns during the 
development of the rebuilding plan, and analyzed effects on fishing-
dependent communities in the Environmental Assessment for this action. 
NMFS also considers effects on Samoan and other underserved communities 
pursuant to Executive Order 12898 on Environmental Justice. These 
analyses show that this management action would not have short-term 
impacts to subsistence, cultural, and commercial fishing if the 
American Samoan Government does not implement complementary management 
in territorial waters. At this time, American Samoa has not developed 
regulations to implement complementary management, and it is not 
reasonably certain they will implement complementary management 
measures in the future. Therefore, NMFS does not expect impacts to 
indigenous communities or for people that rely on fishing as a main 
food source or economic stability.
    Comment 3: Because the proposed regulation is limited to Federal 
waters, while eighty five percent of habitat is in territorial waters, 
coordination with local authorities that have jurisdiction over 
territorial waters is necessary for the plan to bring about the 
intended effects.
    Response: The Council and NMFS selected this rebuilding plan 
because it would end overfishing and allow the stock to rebuild in ten 
years, as required by the Magnuson-Stevens Act, while minimizing 
negative socio-economic impacts to the fishing community. NMFS expects 
that this rule would provide some conservation benefits by closing 
Federal waters to fishing and reducing harvest relative to the status 
quo even if the American Samoa Government does not implement 
complementary management in territorial waters. However, the timeline 
to rebuild could potentially be lengthened to greater than 10 years. 
Accordingly, NMFS would implement the higher performance standard to 
close Federal waters if the ACL is exceeded, and Federal waters would 
remain closed until a coordinated approach to achieve rebuilding is 
implemented. We will continue to work with our management partners at 
the DMWR to improve fisheries management of bottomfish in American 
Samoa.
    Comment 4: If ACLs and AMs do not work to rebuild the bottomfish 
populations, requiring fishing permits may help.
    Response: The Council, including fishery managers from American 
Samoa, has discussed implementing permits in the past. However, there 
are a small number of participants in the fishery, and it is not clear 
that permitting or a limited access program would provide any 
additional management benefit because permits in and of themselves do 
not reduce fishing mortality. Thus, the best way to reduce fishing 
mortality is to limit the amount of fish that can be harvested.
    Comment 5: It could prove to be problematic to require local 
bottomfish fishermen to obtain permits in territorial waters, as well 
as report their catches to NMFS.
    Response: This Amendment does not implement a permit requirement in 
the American Samoa bottomfish fishery, nor does it implement any new 
reporting requirements for bottomfish fishers.
    Comment 6: The DWMR and individual commenters believe the proposed 
change to the set ACL limit to 5,000 lb will affect the fishermen's 
jobs and revenue and lead to food shortages of fish.
    Response: NMFS and the Council address these concerns in the 
analysis in the Environmental Assessment and Regulatory Impact Review. 
The Council and NMFS selected the 5,000 lb ACL because it is the 
maximum catch that allows the bottomfish stock to rebuild within the 
ten-year timeframe permitted under the Magnuson-Stevens Act. Any minor 
short-term impacts to the community are balanced by the long-term 
benefits of rebuilding the stock. This level of catch also helps to 
minimizes cultural, economic and social effects of the rebuilding plan 
on communities in American Samoa. Furthermore, the ACL, AM, and higher 
performance standard are intended to end overfishing, rebuild the 
fishery, and mitigate impacts to fishing communities, such that 
communities that rely on their harvest can continue to benefit from the 
fishery in the future. The Chief Counsel for Regulation of the 
Department of Commerce certified that this rule would not have a 
significant economic impact on a substantial number of small entities. 
In a Finding of No Significant Impact, NMFS determined that this action 
will not significantly impact the quality of the human environment. 
NMFS will evaluate the progress of the rebuilding plan, including all 
environmental and socioeconomic effects, at least every two years, as 
required by the Magnuson-Stevens Act, and work with the Council to 
revise the rebuilding plan if necessary.
    Comment 7: There should be short-term financial compensation for 
Native people who may experience consequences to their local economy, 
social and cultural practices, and food security.
    Response: NMFS does not have the authority under the Magnuson-
Stevens Act to provide monetary compensation to fishermen or fishing 
communities, including Native peoples that may be affected 
economically, socially or culturally as a result of fishing regulations 
that are necessary and required to rebuild an overfished stock.
    Comment 8: Given the stress that the covid pandemic has inflicted 
on

[[Page 25593]]

American Samoa, the American Samoa Government requests that NMFS:
    a. Nullify the rebuilding plan if the next stock assessment shows 
the stocks are healthier.
    Response: This contingency is addressed by existing regulations 
under the Magnuson-Stevens Act. The next benchmark stock assessment for 
American Samoa bottomfish is scheduled for 2023 and the Council and 
NMFS will review the resulting information and take appropriate 
management action, which may include revising elements of the 
bottomfish rebuilding plan.
    b. Assist DMWR in developing a bottomfish community development 
plan to cushion the impact of fishery economic and cultural loss.
    Response: The FEP includes a process and procedures for reviewing 
and approving community development plans (CDP) for access to western 
Pacific fisheries under the Magnuson-Stevens Act (section 305(i)(2)). 
The intent of a CDP is to promote the participation of island 
communities in fisheries that they have traditionally depended upon, 
but may not have the capabilities to support continued and substantial 
participation in, possibly due to economic, regulatory, or other 
constraints. NMFS and the Council will work with DMWR to explore the 
potential for a CDP for American Samoan bottomfish communities.
    c. Assist DMWR in developing the territorial bottomfish management 
plan and the data-limited stock assessment tools that are more 
appropriate for our fishery.
    Response: While this request is outside the scope of the current 
action, NMFS and the Council have several initiatives to support DWMR 
in developing territorial bottomfish management plans. NMFS and Council 
scientists and managers are working with DWMR staff to assess 
management unit species lists and determine which are most suitable to 
primarily Federal, combined, or territorial management. As this process 
proceeds, we will work to identify and address management needs.
    d. Support DMWR by providing our staff the tools and training to 
improve creel data collection, understand the life history stocks, and 
enforce and develop appropriate fisheries regulations.
    Response: DWMR staff provided valuable information on data 
collection status and challenges at the Pacific Insular Fisheries 
Monitoring, Assessment & Planning Summit organized by the Council and 
NMFS in 2019. While this request is outside the scope of the current 
action, NMFS and the Council have been working to carry forward the 
recommendations of the summit, including improving creel surveys and 
life history information. DMWR will continue to be an integral part of 
that process through participation in Council plan teams and other 
working groups. The FishPath workshop that DMWR is planning will bridge 
this information to management capabilities to identify appropriate 
management strategies.
    e. Support initiatives to manage bottomfish with nearby countries 
since exploitation of these stocks in nearby countries may impact our 
local stocks.
    Response: Biological connections between insular fish populations 
may differ from political boundaries, but under the Magnuson-Stevens 
Act neither NMFS nor the Council have the authority to enter directly 
into bilateral or multilateral agreements with foreign governments to 
co-manage fish stocks. While this request is outside the scope of the 
current action, as our understanding of fish populations' connectivity 
advances, NMFS will work with American Samoa and other partners to 
evaluate potential opportunities for ecosystem-based approaches 
fisheries management, which may include consideration of management 
measures in U.S. jurisdiction that are complementary with measures 
enacted in neighboring countries.

Changes From the Proposed Rule

    This final rule does not make any substantive changes from the 
proposed rule.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Fishery and 
Conservation 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 contains no information collection requirements 
under the Paperwork Reduction Act (PRA).

List of Subjects in 50 CFR Part 665

    Accountability measures, American Samoa, Annual catch limits, 
Bottomfishing, Fisheries, Fishing, Pacific Islands, Rebuilding.

    Dated: April 27, 2022.
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. 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 notification 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

[[Page 25594]]

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 notification 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 
paragraph (b) or (c) of this section, fishing for and possession of 
American Samoa 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 
paragraph (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. 2022-09339 Filed 4-29-22; 8:45 am]
BILLING CODE 3510-22-P