Rule2022-09339
Pacific Island Fisheries; Rebuilding Plan for the American Samoa Bottomfish Fishery
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 2, 2022
Effective
June 1, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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).
Full Text
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<title>Federal Register, Volume 87 Issue 84 (Monday, May 2, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov/document/NOAA-NMFS-2022-0023-0006">https://www.regulations.gov/document/NOAA-NMFS-2022-0023-0006</a>.
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
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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
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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
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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
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