Pacific Island Fisheries: Amendment 7 to the Fishery Ecosystem Plan for the American Samoa Archipelago; Discontinue Rebuilding Plan for American Samoa Bottomfish and Implement[...]

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

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 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:

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 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 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.

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

In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, it is unlawful for any person to fish for American Samoa bottomfish MUS or ECS using gear prohibited under § 665.104.

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

(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.