[Federal Register Volume 70, Number 220 (Wednesday, November 16, 2005)]
[Proposed Rules]
[Pages 69502-69505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22729]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 051028280-5280-01; I.D. 102105A]
RIN 0648-AT11


Fisheries Off West Coast States and in the Western Pacific; 
Coastal Pelagic Species Fisheries; Amendment 11

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule to implement Amendment 11 to 
the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP) which 
would change the framework for the annual apportionment of the Pacific 
sardine harvest guideline along the U.S. Pacific coast. The purpose of 
the proposed rule is to achieve optimal utilization of the Pacific 
sardine resource and equitable allocation of the harvest opportunity 
for Pacific sardine.

DATES: Comments must be received by December 16, 2005.

ADDRESSES: You may submit comments on this proposed rule identified by 
I.D. 102105A by any of the following methods:
     E-mail: [email protected]. Include I.D. 102105A in 
the subject line of the message.
     Federal e-Rulemaking portal:http://www.regulations.gov 
Follow the instruction for submitting comments.
     Fax: (562) 980-4047.
     Mail: Rodney R. McInnis, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, 
California 90802.
    For copies of Amendment 11 entitled Allocation of the Pacific 
Sardine Harvest Guideline Amendment 11 to the Coastal Pelagic Species 
fishery Management Plan, and the accompanying environmental assessment/
initial regulatory flexibility analysis/regulatory impact review (EA/
IRFA/RIR) may be obtained at the address above.

FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, Southwest Region, 
NMFS, (562) 980-4034.

SUPPLEMENTARY INFORMATION: Pacific sardines are managed pursuant to the 
CPS FMP, which was implemented by regulations published at 64 FR 69893, 
December 15, 1999. According to the original allocation scheme in the 
CPS FMP, the annual harvest guideline for Pacific sardine was allocated 
two-thirds south of Pt. Piedras Blancas, California (35[deg] 40' N. 
lat.) (a point south of Monterey, California, which included the 
fishery in Southern California) and one-third north (included fisheries 
in Monterey, California, Oregon, and Washington), beginning annually on 
January 1. On October 1, the harvest guideline remaining in each 
subarea was added together, then divided equally between the two areas.
    In 2002, the northern allocation was reached before October 1, 
which required closure of the fishery while significant amounts of 
Pacific sardine remained unharvested in the south (67 FR 58733, 
September 18, 2002). Rough ocean conditions in the Pacific Northwest 
beginning in October makes fishing for Pacific sardine with a purse 
seine gear difficult or impossible. Thus, even if the harvest of 
Pacific sardine were provided to fisheries in the Pacific Northwest 
after October 1, it would not likely be obtained because the rough 
ocean conditions along the coast during that time would preclude 
fishing for Pacific sardine. Because the Pacific sardine fisheries off 
Oregon and Washington would be virtually over by October, the Pacific 
Fishery Management Council (Council) requested an emergency rule to 
make the required allocation in 2002 earlier than October 1, to avoid 
losses in jobs and revenue. An emergency rule was implemented on 
September 26, 2002 (67 FR 60601), that reallocated the harvest 
guideline and reopened the fishery.
    The CPS FMP established a limited entry fishery south of Pt. Arena, 
California (39[deg] N. lat.), which was a point north of San Francisco, 
California. An open access fishery existed north of Pt. Arena, 
California made up of Pacific sardine fisheries off Northern 
California, Oregon, and Washington.
    When the CPS FMP was implemented no Pacific sardine fishery in 
Oregon and Washington existed. The Council adopted the allocation 
procedure included in the CPS FMP to protect the Monterey, California 
fishery (in the northern subarea or Subarea A) from the possibility of 
the fishery in Southern California (in the southern subarea or Subarea 
B) catching the entire harvest guideline before Pacific sardine became 
available in Monterey. As a result of the FMP's allocation procedure, a 
fishing pattern developed whereby Pacific sardine was caught by the 
Southern California fleet at the beginning of the year, by the Pacific 
Northwest fleet in the summer, and by the Monterey fleet in the fall. 
The fishing pattern led to the possibility that the fishery in the 
northern subarea might preempt the fishery in the southern subarea. If 
Pacific sardine remained unharvested in either subarea following the 
reallocation on October 1, the FMP did not provide a procedure to make 
further reallocations to any subarea to increase the likelihood of 
achieving optimum yield (OY) in the Pacific sardine fishery.
    The Council recognized that a process with more flexibility for 
making allocation decisions was needed. Therefore, the Council 
considered amending the framework process for implementing the CPS FMP 
found at 50

[[Page 69503]]

CFR 660.517. At its November 2002 meeting in Foster City, CA, the 
Council adopted a set of management alternatives to address the 
allocation issue and directed its Coastal Pelagic Species Management 
Team (Team) to analyze these alternatives. The primary goal was to 
avoid closing any sector of the Pacific sardine fishery while a portion 
of the harvest guideline remain unharvested.
    At its meeting in Vancouver, Washington, on April 10, 2003, the 
Council received reports from the CPS Advisory Subpanel (Subpanel), 
Team, and public comments, and adopted an interim allocation framework 
that: (1) changed the definition of subarea A and subarea B by moving 
the geographic boundary between the two areas from Pt. Piedras Blancas 
at 35[deg] 40' 00'' N. lat. to Pt. Arena at 39[deg] 00' 00'' N. lat., 
(2) moved the date when Pacific sardine that remain unharvested are 
reallocated to Subarea A and Subarea B from October 1 to September 1, 
(3) changed the percentage of the unharvested Pacific sardine that is 
reallocated to Subarea A and Subarea B from 50 percent to both subareas 
to 20 percent to Subarea A and 80 percent to Subarea B, and (4) 
reallocated all unharvested Pacific sardine that remained on December 1 
coastwide. This procedure was proposed to be in effect for 2003 and 
2004, and for 2005 if the 2005 harvest guideline is at least 90 percent 
of the 2003 harvest guideline.
    Using the best available information, the interim allocation 
framework was developed to address concerns for the short-term until 
NMFS and the Council had sufficient time to develop a more 
comprehensive, longer-term allocation framework. In order to achieve 
optimal utilization and equitable allocation between the different 
sectors of the Pacific sardine fishery, the Council tasked the Subpanel 
to develop an initial range of allocation alternatives for a longer-
term allocation framework. The Subpanel adopted a range of alternatives 
for the allocation of Pacific sardine at their meetings in August and 
September 2004. At the November 2004 meeting the Council reviewed the 
range of alternatives, and with some modification and additions, 
forwarded nine alternatives to the Team for preliminary analysis. When 
adopting a range of alternatives for long-term allocation in April 
2005, the Council expressed an interest in having the flexibility to 
revisit the proposed action in the near-term as the Pacific sardine 
resource and the fisheries and markets that rely on it are dynamic and 
difficult to predict.
    At the April 2005 Council meeting the Council adopted seven of the 
nine alternatives and sent those to the Team for further analysis. 
Below is a summary of the seven forwarded alternatives given to the 
Team for analysis including both a no action alternative and a status 
quo alternative. If the Council chose to take no action, the allocation 
framework would revert to original FMP (64 FR 69888, December 15, 1999) 
formula that was in place before the regulatory amendment (69 FR 8572, 
February 25, 2003) was implemented in 2003. Under status quo the 
Council would have chosen to take action to extend the interim 
allocation. The order of alternatives does not indicate rank or 
priority. All alternatives (except No Action) used Point Arena, 
California (39[deg] N. lat.) as the dividing line between the 
allocation subareas. In order to present the alternatives in a clear 
and comparable fashion the descriptions bullet the fishing season, the 
initial allocation, and reallocations made at different points during 
the fishing season.

No Action: FMP Allocation Framework

    The allocation subareas are divided at Point Piedras Blancas, 
California (35[deg] 40' N. lat.).
    Season: January 1 - December 31
    Initial allocation: On January 1, 33 percent of the harvest 
guideline is allocated to the Subarea A (north, which includes 
Monterey) and 66 percent to the Subarea B (Southern California).
    Reallocation: On October 1, remaining unharvested portion of the 
harvest guideline is pooled and reallocated 50 percent to Subarea A 
(north) and 50 percent to Subarea B (south).

Status Quo: Interim Allocation Framework

    Season: January 1 - December 31
    Initial allocation: On January 1, 33 percent of the harvest 
guideline is allocated to the Subarea A (north) and 66 percent to 
Subarea B (south).
    Reallocation: On September 1, 20 percent of the remaining 
unharvested portion of the harvest guideline is reallocated to the 
Subarea A (north) and 80 percent to Subarea B (south).
    Second reallocation: On December 1, the remaining unharvested 
portion of the harvest guideline is reallocated coastwide.

Alternative 1: Coastwide Allocation In Two Periods

    Season: January 1 - December 31
    Initial allocation: On January 1, 50 percent of the harvest 
guideline is allocated coastwide.
    Reallocation: On July 1, the remaining harvest guideline (50 
percent plus any unharvested portion from the initial allocation) is 
allocated coastwide.

Alternative 2: Rejected by the Council

Alternative 3: Coastwide Allocation In Three Periods

    Season: January 1 - December 31
    Initial allocation: On January 1, 40 percent of the harvest 
guideline is allocated coastwide.
    Reallocation: On July 1, 40 percent of the harvest guideline (plus 
any unharvested portion from the initial allocation) is allocated 
coastwide.
    Second reallocation: On October 1, 20 percent of the harvest 
guideline (plus any unharvested portion from the first reallocation) is 
reallocated coastwide.

Alternative 4: Allocation Formula Depends on the Size of the Harvest 
Guideline

    Season: January 1 - December 31
    (a) The coastwide harvest guideline is greater than 100,000 mt:
    Initial allocation: On January 1, 40 percent of the coastwide 
harvest guideline is allocated to the Subarea A (north) and 60 percent 
to the Subarea B (south).
    Reallocation: On September 1, the remaining unharvested portion of 
the harvest guideline is pooled and allocated coastwide.
    (b) The coastwide harvest guideline is less than 100,000 mt:
    Initial allocation: On January 1, 33 percent of the coastwide 
harvest guideline is allocated to Subarea A (north) and 66 percent to 
the Subarea B (south).
    Reallocation: On September 1, the remaining unharvested portion of 
the coastwide harvest guideline is pooled and 20 percent is allocated 
to Subarea A (north) and 80 percent to the Subarea B (south).
    Second reallocation: On November 1, any remaining unharvested 
portion of the harvest guideline is again pooled and reallocated 
coastwide.

Alternative 5: Rejected by the Council

Alternative 6: Transfer of Unused Allocations Between Subareas

    Season: January 1 - December 31
    Initial allocation (for 2006 only): On January 1, 40 percent of the 
harvest guideline is allocated to the Subarea A (north) and 60 percent 
to the Subarea B (south).
    Reallocation: On September 1, the remaining harvest guideline is 
pooled and allocated coastwide.
    Transfer Rules For Computing Subsequent-Year Allocations After the

[[Page 69504]]

initial year (2006) these rules dictate the allocations to each subarea 
in each subsequent year:
    Rule 1: The transfer of a portion of the harvest guideline from one 
subarea to the other, for the purpose of recomputing allocation 
percentages for the next year, occurs if the portion of a subarea's 
allocation remaining uncaught at the end of the year is greater than 
the transfer limits described in Rule 2.
    Rule 2: If the harvest guideline is greater than 100,000 mt, the 
transfer amount will be equal to 10 percent of the coastwide harvest 
guideline for that year. When the coastwide harvest guideline is 
100,000 mt or less, the transfer amount will be 5,000 mt.
    Rule 3: The transfer amount is applied to the current-year 
allocation for each subarea. The resulting numerical values are then 
converted to percentages of the current-year coastwide harvest 
guideline and used to determine the initial allocation for the 
following year.
    Rule 4: No subarea may initially be allocated more than 75 percent 
of the coastwide harvest guideline.
    Rule 5: The September 1 coastwide reallocation always applies.

Alternative 7: Equal Reallocation

    Season: January 1 - December 31
    Initial allocation: On January 1, 33 percent of the harvest 
guideline is allocated to the Subarea A (north) and 66 percent to the 
Subarea B (south).
    Reallocation: On September 1, remaining harvest guideline is pooled 
and 50 percent of the harvest guideline is allocated to the Subarea A 
(north) and 50 percent to the Subarea B (south).
    Second Reallocation: On November 1, any remaining unharvested 
portion of the harvest guideline is again pooled and reallocated 
coastwide.
    At the June 2005 Council meeting in Foster City, CA, the Council 
adopted a preferred option for the allocation of Pacific sardine that 
creates a seasonal, coastwide allocation scheme. This preferred 
alternative is a modified version of Alternative 3, which provides the 
following allocation formula for the non-tribal share of the harvest 
guideline:

Coastwide Allocation In Three Periods

    Season: January 1 - December 31
    Initial allocation: On January 1, 35 percent of the harvest 
guideline is allocated coastwide.
    Reallocation: On July 1, 40 percent of the harvest guideline (plus 
any unharvested portion from the initial allocation) is allocated 
coastwide.
    Second reallocation: On September 15, 25 percent of the harvest 
guideline (plus any unharvested portion from the first reallocation) is 
reallocated coastwide.
    The Council also recommended a review of the allocation formula in 
2008.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    At this time, NMFS has not determined that Amendment 11 that this 
proposed rule would implement is consistent with the national standards 
of the Magnuson-Stevens Fishery Conservation and Management Act and 
other applicable laws. NMFS, in making that determination, will take 
into account the data, views, and comments received during the comment 
period.
    An IRFA was prepared that describes the economic impact this 
proposed rule, if adopted, would have on small entities. The IRFA is 
available from NMFS (see ADDRESSES). A summary of the IRFA follows:
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the SUMMARY and in the 
SUPPLEMENTARY INFORMATION sections of this proposed rule. This proposed 
rule does not duplicate, overlap, or conflict with other Federal rules. 
There are no reporting, record-keeping, or other compliance 
requirements of the proposed rule.
    Approximately 104 vessels were permitted to operate in the Pacific 
sardine fisheries off the U.S. West Coast in 2004; 63 vessels were 
permitted in the Federal CPS limited entry fishery off California 
(south of 39[deg] N. lat.), while 41 vessels were permitted in Oregon 
and Washington's state Pacific sardine fisheries. All of these vessels 
would be considered small businesses under the Small Business 
Administration standards since the vessels do not have annual receipts 
in excess of $3.5 million. Therefore, NMFS does not anticipate any 
disproportionate economic impacts resulting between small and large 
vessels under the proposed action. Additionally, this proposed action 
is not likely to significantly affect (both positive and negative 
effects) these small entities. The purpose of the action is to achieve 
optimal utilization of the available harvest by all entities through an 
equitable coastwide allocation. Therefore vessels in all regions should 
have an equal opportunity to the resource.
    The fleet as it exists in present day is not likely to change over 
the 2005-2009 period because vessels from California could fish in the 
U.S. Exclusive Economic Zone off Oregon and Washington without a 
respective state issued limited entry permit, but would have to land 
their catches in California. Given the current technology and 
operational aspects of the Pacific sardine fishery this would not be 
practicable. Therefore, NMFS believes that these 63 and 41 vessels will 
comprise the respective southern and northern subarea fleets in the 
future. Under the preferred long-term allocation alternative, Pacific 
sardine landings for CPS for the entire West Coast were projected to 
increase: (1) 19,674 mt from the status quo over the 2005-2009 period, 
with a corresponding increase in ex-vessel revenues of $3,076,891, 
under a 136,000-mt harvest guideline, and a 10 percent annual growth 
rate in landings for all fishery sectors over the 2005-2009 period 
(defined as base case); (2) no change in total landings, but an 
increase of $1,514,553 in ex-vessel revenues under a 72,000 mt harvest 
guideline, and a 10- percent annual growth rate in landings for all 
Pacific sardine fishery sectors over the 2005-2009 period (defined as 
low harvest guideline case or); and, (3) no change in total landings or 
in total ex-vessel revenues under a 200,000 mt harvest guideline, and a 
10-percent annual growth rate in landings for all fishery sectors over 
the 2005-2009 period (defined as high harvest guideline case).
    NMFS anticipates a 10 percent annual growth rate per year based on 
input from the Pacific sardine industry members as to what the Pacific 
sardine market could accommodate. For the preferred alternative, 
Pacific sardine landings in the northern subarea sardine fishery were 
estimated to be 28,141 mt greater than the status quo with ex-vessel 
revenues increasing by $3.8 million under the base case; a 34,592-mt 
increase in landings and an increase of $4.7 million in ex-vessel 
revenue under the low harvest guideline case; and a no increase in 
landings or in ex-vessel revenue under the high harvest guideline case. 
Landings in the southern subarea Pacific sardine fishery would decrease 
by 8,467-mt and ex-vessel revenues would decrease by $743,181 relative 
to the status quo under the base case; a decrease of 26,011 mt in 
landings and $3.2 million in ex-vessel revenues under the low harvest 
guideline case; and, no changes under the high harvest guideline case.
    For the 63 CPS limited entry vessels that would be eligible to 
participate in the southern subarea Pacific sardine fishery, the 8,467 
mt loss in landings over the period under the base case, preferred 
alternative, represents a potential decrease in ex-vessel revenues of 
$11,797 per vessel from the status quo alternative, which would be 2.6

[[Page 69505]]

percent loss in each vessel's projected revenues. For the preferred 
alternative under the low harvest guideline case, vessels in the 
southern subarea fishery stand to lose $50,497 each, a 15.3-percent 
decrease from the status quo, and under the high harvest guideline case 
there would be no change in vessel earnings from the status quo. These 
estimates may understate the actual earnings impacts per vessel since 
only 61 vessels participated in the southern subarea fishery during 
2004.
    For the 41 vessels that could participate in the northern subarea 
fishery each would stand to gain $93,173 in ex-vessel revenues over the 
period under the base case, preferred alternative, a 10.6-percent 
increase from the status quo alternative. For the preferred alternative 
under the low harvest guideline case, vessels in the northern subarea 
fishery gain $114,533 each, a 26.4-percent increase from the status 
quo, and under the high harvest guideline case there would be no change 
from the status quo. These estimates may understate the actual earnings 
impacts per vessel since only 34 vessels recorded landings in the 
northern subarea fishery during 2004.
    The Council considered six alternatives to the preferred 
alternative in addition to the status quo alternative. All alternatives 
resulted in ex-vessel revenue gains of various magnitudes for the 
fishery as a whole except the ``No Action'' alternative in all cases, 
and alternative 4.b under the low harvest guideline case. Although the 
proposed alternative did not yield the greatest overall gain, with the 
least negative impacts to individual vessels from any one region, it 
was deemed most equitable by industry members when considered relative 
to the full range of conservation and management objectives 
constituting optimum yield under the Magnuson-Stevens Act.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: November 9, 2005.
James W. Balsiger,
Acting 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 660 as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

    1. The authority citation for part 660 continues to read as 
follows:

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

    2. In Sec.  660.502, the definition for ``Initial annual harvest 
guideline'' is added, in alphabetical order, to read as follows:


Sec.  660.502  Definitions.

* * * * *
    Initial harvest guideline means a specified numerical harvest 
objective set at the beginning of the fishing season.
* * * * *
    3. Section 660.509 is revised to read as follows:


Sec.  660.509  Closure of directed fishery.

* * * * *
    (a) When the annual harvest guideline for either Pacific sardine or 
Pacific mackerel is reached, the directed fishery for Pacific sardine 
or Pacific mackerel shall be closed until the beginning of the next 
fishing season as stated in Sec.  660.510 (a) and (b). The Regional 
Administrator shall announce in the Federal Register the date of 
closure of the directed fishery for Pacific sardine or Pacific 
mackerel. Upon such closure, Pacific mackerel may be harvested 
incidental to the directed fishery for Pacific sardine to the extent 
permitted by the annual harvest guideline. The Regional Administrator 
shall announce in the Federal Register the amount of the incidental 
trip limit, if any, that was recommended by the Council and approved by 
NMFS.
    (b) When the allocation and reallocation levels for Pacific sardine 
in Sec.  660.511 (f)-(h) are reached, the Pacific sardine fishery shall 
be closed until either it re-opens per the allocation scheme in Sec.  
660.511 (g) and (h) or the beginning of the next fishing season as 
stated in Sec.  660.510 (a). The Regional Administrator shall announce 
in the Federal Register the date of the closure of the directed fishery 
for Pacific sardine.
    4. In Sec.  660.511 paragraph (f) is revised, and paragraphs (g), 
and (h) are added to read as follows:


Sec.  660.511  Catch restrictions.

* * * * *
    (f) On January 1, 35 percent of the initial harvest guideline for 
Pacific sardine is allocated coastwide within the fishery management 
area.
    (g) On July 1, 40 percent of the initial harvest guideline for 
Pacific sardine plus the remaining unharvested portion of the January 1 
allocation in (f) is allocated coastwide within the fishery management 
area.
    (h) On September 15, 25 percent of the initial harvest guideline 
for Pacific sardine plus the remaining unharvested portion of the July 
1 allocation is allocated coastwide within the fishery management area.
[FR Doc. 05-22729 Filed 11-15-05; 8:45 am]
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