[Federal Register Volume 71, Number 125 (Thursday, June 29, 2006)]
[Rules and Regulations]
[Pages 36999-37002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5816]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 051028280-6160-02; I.D. 102105A]
RIN 0648-AT11


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Amendment 11

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

ACTION: Final rule

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

DATES: Effective July 31, 2006.

ADDRESSES: 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/
final regulatory flexibility analysis/regulatory impact review may be 
obtained at the address below.
     Mail: Rodney R. McInnis, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 
90802.

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

SUPPLEMENTARY INFORMATION: Amendment 11 changes the regional allocation 
structure of Pacific sardine that has been in place for the last three 
years and establishes a coastwide, seasonal allocation apportionment. 
Amendment 11 provides the following allocation formula for the non-
tribal share of the harvest guideline: (1) thirty-five percent of the 
harvest guideline to be allocated coastwide on January 1; (2) 
reallocate 40 percent of the harvest guideline coastwide, plus any 
portion not harvested from the initial allocation, on July 1; and (3) 
reallocate the remaining 25 percent of the harvest guideline coastwide, 
plus any portion not harvested from earlier allocations, on September 
15. A proposed rule to implement Amendment 11 to the Coastal Pelagic 
Species (CPS) Fishery Management Plan (FMP) was published in the 
Federal Register on November 16, 2005 (70 FR 69502). On January 26, 
2006, NMFS Southwest Region (SWR) sent a letter to the Pacific Fishery 
Management Council (Council) approving Amendment 11 to the CPS FMP.
    The Council adopted the CPS FMP in 1998. The CPS FMP was 
implemented on January 1, 2000 (64 FR 69888, December 15, 1999). The 
original Pacific sardine allocation formula in the FMP partitioned 33 
percent of the annual harvest guideline to the northern subarea and 66 
percent to the southern subarea. Nine months after the January start of 
the fishery (i.e., October 1), the remaining harvest guideline was 
pooled and reallocated 50 percent - 50 percent to each subarea. The 
original boundary between the two subareas was 35[deg] 40' N. lat. 
(approximately Point Piedras Blancas, California). This formula was 
incorporated into the CPS FMP from existing California state law. The 
state law was designed to balance the fishing opportunity for Pacific 
sardine between the southern California-based fleet and the Monterey-
based fleet. At the time of the FMP's implementation, this was 
considered a status quo action (as the Pacific sardine fishery occurred 
principally in California) with no environmental impacts. No 
alternative allocation formulae were considered.
    After the original CPS FMP was adopted, the Pacific sardine biomass 
expanded north along the U.S. West Coast allowing fisheries to develop 
in the Pacific Northwest (Oregon and Washington). With this expansion, 
under the original formula, the northern area allocation was shared by 
the Monterey-based fleet and the Oregon and Washington-based fleets. 
Oregon and Washington-based fleets expressed concern to the Council 
that the original allocation framework did not provide optimal harvest 
opportunity to the respective fishery sectors. Generally, the southern 
California-based fleet starts harvesting Pacific sardine January 1, and 
the harvest increases steadily throughout the year; the Monterey-based 
fleet starts in August (tied to market squid availability) and harvest 
increases through January or February of the following year; Oregon and 
Washington-based fleets have a more abbreviated season, which starts in 
June and ends in October. Because these sectors operate on very 
different schedules, annual allocations help to ensure that each sector 
receives a reasonable fishing opportunity. Ex-vessel landings in all 
sectors are driven by domestic and international market forces for 
Pacific sardines, as well as the availability and markets for other 
species of economic benefit to the Pacific sardine vessels and 
processors (e.g., market squid). The northern California-based fleets 
and the Oregon and Washington-based fleets are also affected by adverse 
weather which occurs and affects the ability of these fleets to harvest 
Pacific sardine during such periods.
    In April 2003, the Council recommended to NMFS an interim framework 
for the allocation of Pacific sardine. The revised allocation system: 
(1) changed the definition of the subareas by moving the geographic 
boundary between the two areas from 35[deg] 40' N. lat. to 39[deg] N. 
lat. (Point Arena, California); (2) moved the date when remaining 
unharvested Pacific sardine is reallocated to the subareas from October 
1 to September 1; (3) changed the percentage of the unharvested

[[Page 37000]]

Pacific sardine that is reallocated to the northern subarea and 
southern subarea from 50 percent to both subareas to 20 percent to the 
northern subarea and 80 percent to the southern subarea; and (4) 
reallocated all the unharvested Pacific sardine that remains on 
December 1 coastwide. The Council requested this allocation framework 
be in place for the 2003 and 2004 fishing seasons, and also in 2005 if 
the 2005 harvest guideline was at least 90 percent of the 2003 harvest 
guideline. NMFS implemented the revised allocation framework by a 
regulation that was published on September 4, 2003 (68 FR 52523).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.
    At the June 2005 Council meeting, the Council examined seven 
alternative long-term allocation schemes, and at that time adopted the 
regulations set forth in Amendment 11. The Council also recommended a 
review of the allocation formula in 2008, due to the fact that the 
Pacific sardine resource, as well as the fisheries and markets that 
rely on it, are often dynamic and difficult to predict.
    For further background information on this action please refer to 
the preamble of the proposed rule (70 FR 69502).

Comments and Responses

    NMFS received three comments electronically regarding Amendment 11 
or its implementing rules: two letters were received from an industry 
organization and one comment was received from a member of the public. 
Comments were not opposed to the adoption or implementation of the 
amendment. These comments are addressed here:
    Comment 1: One commenter stated a belief that the northern part of 
the sardine population on the coast may be more variable than the 
southern part and felt that close monitoring and careful allocation may 
be needed.
    Response: The Pacific sardine population can be hard to predict and 
variable. However, in April, 2006, the Southwest Fisheries Science 
Center, with the cooperation of the Northwest Fisheries Science Center, 
and the Canadian Department of Fisheries and Oceans, conducted a coast-
wide sardine research survey off California, Oregon, Washington, and 
Vancouver Island. The primary goal of this research was a fishery 
independent estimate of Pacific sardine over most of its known range 
during the same time period (synoptic) to provide stock structure 
information without migration introducing possible biases. This was the 
first cruise of this nature conducted to examine sardine populations; 
it is expected to provide valuable information towards the 
understanding of the northern portion of the population as well as 
sardine stock structure as a whole.
    Comment 2: The second commenter asked that NOAA use a 
precautionary, stepwise approach to ``long-term'' allocation. The 
comment also provided notes on specific Amendment language from an 
industry perspective.
    Response: NMFS believes that by the Council recommending a review 
of the allocation formula in 2008, with the objective of examining any 
new data on the sardine population that could improve the assessment 
model or allocation scheme, that the Council is moving in a stepwise 
manner regarding the allotment of the Pacific sardine resource. Most of 
the notes on the language were in reference to predictions made about 
the fishery such as future market conditions, possible landings within 
the two subareas, and the available harvest level. NMFS agrees that it 
is difficult to truly predict any of these conditions, however it is 
believed that the Council took a cautious approach when examining these 
elements during the assessment process of Amendment 11.
    Comment 3: The third commenter also expressed the need for expanded 
research as well as interest in a re-examination of the capacity of the 
fishery, particularly the open access portion in the Northwest.
    Response: As stated previously, a coast-wide sardine research 
survey has recently been completed with the intent of providing 
valuable insight into the stock structure and population dynamics of 
Pacific sardines off the West Coast. Although the Pacific sardine 
fishery is a federally managed limited entry fishery south of 39[deg] 
N. lat. and an open access fishery north of 39[deg] N. lat., the States 
of Oregon and Washington limit the number of vessels allowed in their 
respective state managed fisheries. Amendment 11 was designed to 
provide equitable harvest of the sardine resource to all parties 
involved. Basing the allotments on a coastwide, as opposed to a subarea 
scale, and using a seasonal approach should enable this to occur.
    No changes were made to the regulatory text from the proposed rule.

Classification

    The Regional Administrator, Southwest Region, NMFS, determined that 
the final rule implementing Amendment 11 to the CPS FMP is necessary 
for the conservation and management of the Pacific sardine fishery and 
that it is consistent with the Magnuson-Stevens Fishery Conservation 
and management Act and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    Following the proposed rule stage of this action a Final Regulatory 
Flexibility Analysis (FRFA) was prepared that examines the economic 
impact this action would have on small entities. The FRFA is available 
from NMFS (see ADDRESSES). A summary of the FRFA 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 final rule. This final 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

[[Page 37001]]

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 
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.
    The Council prepared an environmental assessment (EA) for Amendment 
11 to the CPS FMP and the Assistant Administrator for NMFS concluded 
that there will be no significant impact on the human environment as a 
result of this final rule. Section 7 consultations under the Endangered 
Species Act were initiated with both the U.S. Fish and Wildlife Service 
and the Protected Resource Division of the NMFS. In both instances it 
was determined that fishing activities conducted under Amendment 11 and 
its implementing regulations are not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of critical habitat of any such 
species.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, Fisheries, Fishing, Indians, 
Reporting and recordkeeping requirements.

    Dated: June 22, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

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

0
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.
* * * * *

0
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.

0
4. In Sec.  660.511 paragraph (f) is revised, and paragraphs (g), and 
(h) are added to read as follows:

[[Page 37002]]

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. 06-5816 Filed 6-28-06; 8:45 am]
BILLING CODE 3510-22-S