[Federal Register Volume 89, Number 161 (Tuesday, August 20, 2024)]
[Proposed Rules]
[Pages 67402-67406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18500]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 240813-0218]
RIN 0648-BN03


Pacific Island Fisheries; Amendment 7 to the Fishery Ecosystem 
Plan for the American Samoa Archipelago; Discontinue Rebuilding Plan 
for American Samoa Bottomfish and Implement Annual Catch Limits and 
Accountability Measures for Fishing Years 2024-2026

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to amend the Fishery Ecosystem Plan for the 
American Samoa Archipelago (FEP) to discontinue the rebuilding plan for 
American Samoa bottomfish and to implement single-species annual catch 
limits (ACL) and accountability measures (AM) for bottomfish in the 
American Samoa archipelago for fishing years 2024, 2025 and 2026. The 
action is necessary because new best scientific information indicates 
the fishery is not overfished or experiencing overfishing, and new ACLs 
and AMs are warranted. This proposed rule considers the best available 
scientific, commercial, and other information about the fishery, and 
would support the long-term sustainability of the fishery.

DATES: NMFS must receive comments by October 4, 2024.

ADDRESSES: A plain language summary of this proposed amendment is 
available at https://www.regulations.gov/docket/NOAA-NMFS-2024-0088. 
You may submit comments on this document, identified by NOAA-NMFS-2024-
0088, 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 type NOAA-NMFS-2024-0088 in the Search box 
(note: copying and pasting the FDMS Docket Number directly from this 
document may not yield search results). Click on the ``Comment'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Sarah Malloy, Deputy 
Regional Administrator, NMFS Pacific Islands Regional Office (PIRO), 
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).
    Pursuant to the National Environmental Policy Act, the Western 
Pacific Fishery Management Council (Council) and NMFS prepared an 
environmental assessment (EA) to support this proposed action. The EA 
is available at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Heather Nelson, NMFS PIRO, Sustainable 
Fisheries Division, 808-725-5179.

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the American 
Samoa bottomfish fishery in the U.S. Exclusive Economic Zone (EEZ, 
generally 3-200 nautical miles (345 kilometers) from shore) around the 
American Samoa Archipelago under the FEP and implementing regulations, 
as authorized by the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). The 2019 stock assessment for 
the American Samoa bottomfish fishery indicated that the stock was 
overfished and experiencing overfishing. The fishery has therefore been 
managed under a rebuilding plan since 2022 (87 FR 25590, May 5, 2022). 
However, in September 2023 NMFS determined that none of the stocks in 
the fishery are overfished and were not overfished in the year in which 
the 2019 overfished determination was made. Accordingly, the Council 
and NMFS have proposed discontinuing the rebuilding plan, and

[[Page 67403]]

the subject rule would implement new ACLs and AMs to prevent 
overfishing and provide sustainable management for the fishery 
consistent with the FEP, the Magnuson-Stevens Act and implementing 
regulations.
    The fishery targets and harvests 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. The majority (85 percent) of 
bottomfish habitat is in territorial waters, and the remaining 15 
percent is in Federal waters. Fishing for bottomfish primarily occurs 
using aluminum alia catamarans less than 32 feet (9.7 meters) in length 
that are outfitted with outboard engines and wooden hand reels that 
fishermen use for both trolling and bottomfish fishing. There are no 
permitting or reporting requirements for bottomfish fishing in either 
territorial waters or Federal waters around American Samoa. The 
American Samoa Department of Marine and Wildlife Resources collects 
catch data through voluntary boat-based and shore-based creel survey 
programs and collects commercial sales data through a mandatory 
commercial receipt book system in accordance with territorial 
regulations. The fishing year for the fishery begins on January 1 and 
ends on December 31.
    In June 2023, the NMFS Pacific Islands Fisheries Science Center 
(PIFSC) completed a benchmark stock assessment for bottomfish in 
American Samoa, which was the culmination of a 3-year American Samoa 
bottomfish stock assessment improvement plan. Key improvements in the 
2023 assessment compared to the 2019 assessment include identification 
and correction of issues with fisheries data; incorporation of data 
through 2021, including historical catch from 1967 to 1985 using older 
government reports; and use of single-species, age-structured models 
instead of assessing bottomfish as a multispecies stock complex. Stock 
projections and corresponding probabilities of overfishing were 
calculated for 2022-2028 over a range of hypothetical 8-year catches 
for 9 BMUS: Aphareus rutilans, Aprion virescens, Caranx lugubris, 
Etelis coruscans, Lethrinus rubrioperculatus, Lutjanus kasmira, 
Pristipomoides flavipinnis, P. zonatus, and Variola louti. Etelis 
carbunculus and Pristipomoides filamentosus were not assessed due to 
insufficient data. The assessment indicated that none of the American 
Samoa bottomfish stocks assessed in the 2023 benchmark assessment were 
overfished or subject to overfishing, and the stock assessment also 
found that the fishery was neither overfished nor experiencing 
overfishing in any year from 2017 through the 2021, the final data year 
in the assessment. That none of the stocks were overfished in the final 
data year of the previous assessment or since is significant because 
that is a criterion for discontinuing a rebuilding plan (see 50 CFR 
600.310(j)(5)).
    On August 23, 2023, PIFSC determined the 2023 benchmark stock 
assessment to be the best scientific information available, consistent 
with National Standard 2 of the Magnuson-Stevens Act. On September 20, 
2023, NMFS determined that none of the American Samoa BMUS were 
overfished or experiencing overfishing, and NMFS informed the Council 
of this determination on September 21, 2023.
    Under the proposed action, NMFS would amend the FEP to discontinue 
the rebuilding plan for American Samoa bottomfish. NMFS must specify 
ACLs and AMs for each stock and stock complex in an FEP, as recommended 
by the Council, and must consider the best available scientific, 
commercial, and other information about the fishery. Therefore, the 
Council recommended and NMFS proposes to implement single-species ACLs 
and AMs for each BMUS assessed by the 2023 benchmark stock assessment 
for fishing years 2024, 2025 and 2026. All recommended ACLs are below 
the overfishing limit, set at a 50 percent risk of overfishing, and 
below the allowable biological catch established by the Council's 
Scientific and Statistical Committee, consistent with National Standard 
1 of the Magnuson-Stevens Act. Further, the Council recommended and 
NMFS proposes to establish indicator species for unassessed E. 
carbunculus and P. filamentosus. NMFS would establish E. coruscans as 
an indicator species for E. carbunculus and P. flavipinnis as an 
indicator species for P. filamentosus. NMFS would not implement 
separate ACLs for E. carbunculus and P. filamentosus. Instead, they 
would be subject to the post-season AM based on catch of the indicator 
species, as defined at 50 CFR 600.310(d)(2)(ii). NMFS proposes to 
implement the following ACLs:

 Table 1--Proposed ACLs for American Samoa BMUS for Fishing Years 2024,
                             2025, and 2026
------------------------------------------------------------------------
                                                       Proposed ACL (lb/
             Species                  Samoan name             kg)
------------------------------------------------------------------------
Aphareus rutilans...............  Palu-gutusiliva....        8,554/3,880
Aprion virescens................  Asoama.............        4,872/2,210
Caranx lugubris.................  Tafauli............        3,086/1,400
Etelis coruscans................  Palu-loa...........        4,872/2,210
Lethrinus rubrioperculatus......  Filoa-paomumu......        8,554/3,880
Lutjanus kasmira................  Savane.............       16,645/7,550
Pristipomoides flavipinnis......  Palu-sina..........        2,579/1,170
Pristipomoides zonatus..........  Palu-ula...........          1,521/690
Variola louti...................  Velo...............        2,205/1,000
------------------------------------------------------------------------

    After the end of each fishing year, if NMFS and the Council 
determine that the average catch from the most recent 3-year period 
exceeds the ACL for any species, NMFS would reduce the ACL for that 
species in the subsequent year by the amount of overage. Although the 
ACLs apply to Federal waters, both catch from territorial and Federal 
waters would be counted towards the ACLs. American Samoa does not 
currently implement catch limits in territorial waters. As an 
additional performance measure specified in the FEP, if catches exceed 
an ACL more than once in a 4-year period, the Council must re-evaluate 
the ACL process, and adjust the system, as necessary, to improve its 
performance and effectiveness for that species.
    The American Samoa bottomfish fishery is relatively small and 
primarily non-commercial, but is still of importance to the local 
economy, and from social, cultural, and food security standpoints. The 
demand for bottomfish in American Samoa varies depending on the need 
for fish at community events, and fishermen may switch to bottomfish 
fishing during periods when target

[[Page 67404]]

longline catches or prices are low. Between 2017 and 2019 before the 
onset of the COVID-19 pandemic and the overfished determination, 
American Samoa bottomfish fishermen caught an average of 12,499 lb of 
bottomfish annually and sold an average of 1,239 lb per year, or an 
annual average of 9.9 percent of their catch. However, responses from a 
2021 American Samoa cost-earning survey by PIFSC indicated that 
bottomfish fishermen sold about 50 percent of their bottomfish catch. 
Due to the wide range of estimates of percent of the catch sold, 
potential economic effects are presented based on both estimates.
    In 2019, before the onset of the COVID-19 pandemic and its effects 
on local markets, the average price per pound for bottomfish was $4.24. 
Since the pandemic has ended, we use this figure as the basis for 
evaluating economics of the fishery. Adjusted for 2022 dollars, the 
average adjusted price per pound was $5.09. The total allowable harvest 
of all BMUS of 52,888 lb (23,990 kg) under the proposed action is more 
than ten times the amount available under the rebuilding plan. Assuming 
that the full ACLs for all 9 BMUS were caught and fishermen sold their 
catch for $5.09 per lb, the total potential catch value under the 
proposed ACLs would be $269,200, with a commercial value between 
$26,651 (9.9 percent sold) to $134,600 (50 percent sold) per year.
    The use of single-species ACLs prevents overfishing of any 
individual species and allows the implementation of an AM to mitigate 
the effects of harvest over the ACL of any individual species. AMs 
under the current rebuilding plan are designed to rebuild an overfished 
stock, rather than prevent overfishing of a healthy stock. For this 
reason, under the current rebuilding plan, NMFS would close Federal 
waters to fishing if the ACL was reached or if the ACL was projected to 
be reached. However, in-season AMs in the bottomfish fishery are 
impractical because real-time, in-season monitoring is not always 
available due to the limited number of interviews and amount data 
collected by the creel survey. NMFS does not receive a statistically 
reliable amount of data to perform catch expansions until late in the 
fishing year, at which point the ACL may already be exceeded. 
Therefore, under the proposed action there is not an in-season AM; 
instead an overage adjustment would be used to mitigate the effects of 
overfishing if the 3-year average catch for one of the nine assessed 
species exceeded its ACL. In the 3 most recent years for which single-
species catch data is available from the stock assessment (2019-2021), 
catch did not exceed 62 percent of the proposed ACLs for any of the 9 
assessed species. Based on this recent catch history, NMFS does not 
expect that the fishery will exceed the ACL of any species and require 
an overage adjustment. If an overage adjustment was needed, it would 
only apply to species for which catch exceeded the ACL so fishers would 
be able to continue harvesting other BMUS, providing greater economic 
opportunity, more fish for use in subsistence or cultural practices, 
and greater year-to-year consistency in the harvest of the fishery than 
is currently available under the rebuilding plan. Over time, continued 
sustainable management of the fishery may lead to minor beneficial 
effects for each of the BMUS relative to management of the fishery as a 
multi-species complex. This in turn would positively impact both 
commercial profit and cultural practices which utilize BMUS.
    Overall the fishery is not expected to substantially change the way 
it fishes with respect to fishing gear, fishing effort, participation, 
intensity, or area fished, but total catch may increase due to the 
overall greater amount of BMUS available for harvest under the proposed 
ACLs. However, if recent catch trends in commercial and non-commercial 
fisheries continue through 2024-2026, then harvest of the 9 assessed 
BMUS is not expected to exceed the proposed ACLs, and NMFS does not 
expect the American Samoa BMUS to be subject to overfishing or become 
overfished in fishing years 2024-2026.
    Public comments are being solicited on the proposed amendment 7 to 
the FEP through the end of the comment period for the Notice of 
Availability (NOA); see the NOA published on August 2, 2024 (89 FR 
63155). NMFS must receive comments on the NOA by October 1, 2024.
    Public comments on the proposed rule must be received by the end of 
the comment period on the FEP amendment, as published in the NOA, to be 
considered in the decision to approve, partially approve, or disapprove 
the FEP amendment.
    All comments received by the end of the comment period on the FEP 
amendment, whether specifically directed to the FEP amendment or the 
proposed rule, will be considered in the approval/disapproval decision. 
Comments received after that date will not be considered in the 
decision on the FEP amendment.
    To be considered, comments must be received by the close of 
business on the last day of the comment period; that does not mean 
postmarked or otherwise transmitted by that date.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the NMFS 
Assistant Administrator has determined that this proposed rule is 
consistent with the FEP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

Regulatory Flexibility Act (RFA) 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. 
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 proposed action would set single-species ACLs for the following 
nine assessed American Samoa BMUS (with their corresponding Samoan 
name) for 2024, 2025, and 2026: Aphareus rutilans/Palu-gutusiliva 
(8,554 lb), Aprion virescens/Asoama (4,872 lb), Caranx lugubris/Tafauli 
(3,086 lb), Etelis coruscans/Palu-loa (4,872 lb), Lethrinus 
rubrioperculatus/Filoa-paomumu (8,554 lb), Lutjanus kasmira/Savane 
(16,645 lb), Pristipomoides flavipinnis/Palu-sina (2,579 lb), P. 
zonatus/Palu-ula (1,521 lb), and Variola louti/Velo (2,205 lb). The 
proposed action would also establish E. coruscans as an indicator 
species for E. carbunculus/Palu-malau and P. flavipinnis as an 
indicator species for P. filamentosus/Palu-ena ena. Separate ACLs and 
AMs would not be implemented for E. carbunculus and P. filamentosus. 
Instead, they would be subject to the post-season AM based on 
monitoring of catch of the indicator species. Given the limited 
capability of real time, in-season monitoring, only post-season AMs 
would apply. After the end of each year, if NMFS and the Council 
determine that the average catch from the most recent 3-year period 
exceeds the ACL of a species, NMFS

[[Page 67405]]

would reduce that ACL in the subsequent year by the amount of the 
overage. As an additional performance measure specified in the FEP, if 
catches exceed an ACL more than once in a 4-year period, the Council 
must re-evaluate the ACL process, and adjust the system, as necessary, 
to improve its performance and effectiveness for that species.
    The American Samoa bottomfish fishery is primarily a non-commercial 
fishery with a small number of participants, many of whom also 
participate in other fisheries such as troll and small-scale longline. 
The most recent annual Stock Assessment and Fishery Evaluation Report 
for the American Samoa Archipelago FEP estimated that 9 unique vessels 
landed BMUS in 2022: four bottomfishing vessels, two mixed bottomfish-
troll vessels, and 3 using spearfishing gear (WPRFMC 2023). Between 
2017 and 2019, prior to the onset of the pandemic, fishermen sold an 
average of 9.9 percent of bottomfish catch (commercial landings for 
2020 are not considered representative due to the onset of the COVID-19 
pandemic and are not available for 2021 and 2022 because of data 
confidentiality). In 2019, the last full year prior to the pandemic and 
its effects on markets, the average price per pound was $4.24, which 
adjusted for 2022 dollars, would be $5.09 (WPRFMC 2023). The demand for 
bottomfish on American Samoa varies depending on the need for fish at 
community events, and fishermen may switch to bottomfish fishing during 
periods when target longline catches or prices are low. Based on creel 
surveys, fishermen caught 11,399 lb (5,170 kg) of bottomfish in 2019, 
7,697 lb (3,491 kg) in 2020, and 2,063 lb (936 kg) in 2021; in 2022, 
the year in which the rebuilding plan was implemented, fishermen caught 
2,583 lb (1,172 kg) of bottomfish.
    Under the proposed action, catch would be monitored against the ACL 
on a single-species basis and enable higher total allowable landings in 
the bottomfish fishery (52,888 lb) compared to the current rebuilding 
plan (5,000 lb). The AMs would be applied based on the average catch of 
each species over the most recent three years. If the fishery were to 
continue to operate as it has in recent years, the fishery would not 
likely exceed the proposed ACLs for any single species under the 
proposed action either in a given year, or over a 3-year average. 
Average catch of A. virescens in 2019-2021 was the closest to its 
corresponding ACL, at 41 percent of the proposed ACL, followed by C. 
lugubris and E. coruscans at 23 percent and 21 percent, respectively. 
The catch of A. virescens did exceed the proposed ACL (4,872 lb/2210 
kg) in 2015 (5,628 lb/2,553 kg) and 2016 (6,598 lb/2,993 kg) and the 
catch of E. coruscans exceeded the proposed ACL (4,872 lb/2210 kg) in 
2014 (5,088 lb/2308 kg) and 2016 (6,748 lb/3,061 kg). The 3-year 
average catch for each of these species would also have exceeded the 
proposed ACL for A. virescens in 2016 and 2017 and the proposed ACL for 
E. coruscans in 2016.
    If the average 3-year catch were to reach or exceed the ACL for any 
one species, the post-season AM would be applied only to that species, 
but the fishery could continue to catch all other BMUS that had not 
reached their respective proposed ACLs. If fishery participants catch 
the full amount of bottomfish, the potential revenue earned fleetwide 
would be $269,200 or $29,911 per participant in a fishery with nine 
participants, far greater than potential revenue under the current 
rebuilding plan ($25,450 fleetwide). The actual revenue would likely be 
much lower, given that recent catch levels are much lower than the 
proposed ACLs combined with the prevalence for non-commercial use of 
catch in this fishery.
    Under the proposed action, 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 
choose to fish in Federal waters benefitting from the removal of the 
rebuilding plan.
    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. 
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.

List of Subjects in 50 CFR Part 665

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

    Dated: August 13, 2024.
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 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 fish 
for American Samoa bottomfish MUS or ECS using gear prohibited under 
Sec.  665.104.
0
3. Amend Sec.  665.106 by revising paragraphs (a) through (c) and 
removing paragraphs (d) and (e) to read as follows:


Sec.  665.106   American Samoa annual catch limits (ACL).

    (a) Annual catch limits (ACL). In accordance with Sec.  665.4, the 
ACLs for American Samoa bottomfish MUS during fishing years 2024, 2025 
and 2026 are as follows:

[[Page 67406]]



                        Table 1 to Paragraph (a)
------------------------------------------------------------------------
             Species                  Samoan name           ACL (lb)
------------------------------------------------------------------------
Aphareus rutilans...............  Palu-gutusiliva....              8,554
Aprion virescens................  Asoama.............              4,872
Caranx lugubris.................  Tafauli............              3,086
Etelis coruscans................  Palu-loa...........              4,872
Lethrinus rubrioperculatus......  Filoa-paomumu......              8,554
Lutjanus kasmira................  Savane.............             16,645
Pristipomoides flavipinnis......  Palu-sina..........              2,579
Pristipomoides zonatus..........  Palu-ula...........              1,521
Variola louti...................  Velo...............              2,205
------------------------------------------------------------------------

    (b) Post-season accountability measure (AM). If the average catch 
of any species in the most recent three years exceeds its specified 
ACL, the Regional Administrator will make an overage adjustment in a 
separate rulemaking to reduce the ACL for that species for the 
subsequent year by the amount of the overage. All ACLs for species for 
which the three most recent years of catch did not exceed the ACL will 
remain unchanged.
    (c) Indicator species. E. coruscans will serve as an indicator 
species for E. carbunculus and P. flavipinnis will serve as an 
indicator species for P. filamentosus. There are no separate ACLs and 
AMs for E. carbunculus and P. filamentosus. E. carbunculus will be 
subject to the post-season AM if E. coruscans reaches the ACL. P. 
filamentosus will be subject to the post-season AM if P. flavipinnis 
reaches the ACL.

[FR Doc. 2024-18500 Filed 8-19-24; 8:45 am]
BILLING CODE 3510-22-P