[Federal Register Volume 74, Number 2 (Monday, January 5, 2009)]
[Proposed Rules]
[Pages 252-254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31344]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0812171612-81615-01]
RIN 0648-XM21


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Annual Specifications

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

ACTION:  Proposed rule.

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SUMMARY: NMFS proposes a regulation to implement the annual harvest 
guideline (HG) for Pacific sardine in the U.S. exclusive economic zone 
(EEZ) off the Pacific coast for the fishing season of January 1, 2009, 
through December 31, 2009. This HG is proposed according to the 
regulations implementing the Coastal Pelagic Species (CPS) Fishery 
Management Plan (FMP) and establishes allowable harvest levels for 
Pacific sardine off the Pacific coast. The proposed initial HG for the 
2009 fishing year is 65,732 mt and is proposed to be divided across the 
seasonal allocation periods in the following way: January 1-June 30, 
22,006 mt would be allocated for directed harvest with an incidental 
set-aside of 1,000 mt; July 1-September 14, 25,293 mt would be 
allocated for directed harvest with an incidental set-aside of 1,000 
mt; September 15-December 31, 11,933 mt would be allocated for directed 
harvest with an incidental set-aside of 4,500 mt. If during any of the 
seasonal allocation periods the applicable adjusted directed harvest 
allocation is projected to be taken, fishing would be closed to 
directed harvest and only incidental harvest would be allowed.

DATES:  Comments must be received by February 4, 2009.

ADDRESSES: You may submit comments on the Initial Regulatory 
Flexibility Analysis (IRFA) prepared for this rule or on this proposed 
rule identified by 0648-XM21 by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     Mail: Rodney R. McInnis, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
     Fax: (562)980-4047
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you prefer to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the IRFA or the report ``Assessment of Pacific Sardine 
Stock for U.S. Management in 2009'' may be obtained from the Southwest 
Regional Office (see the Mailing address above).

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

SUPPLEMENTARY INFORMATION: The CPS FMP, which was implemented by 
publication of the final rule in the Federal Register on December 15, 
1999 (64 FR 69888), divides management unit species into two 
categories: actively managed and monitored. Harvest guidelines for 
actively managed species (Pacific sardine and Pacific mackerel) are 
based on formulas applied to current biomass estimates. Biomass 
estimates are not calculated for species that are only monitored (jack 
mackerel, northern anchovy, and market squid).
    During public meetings each year, the biomass for each actively 
managed species within the CPS FMP is presented to the Pacific Fishery 
Management Council's (Council) Coastal Pelagic Species Management Team 
(Team) and the Council's Coastal Pelagic Species Advisory Subpanel 
(Subpanel). At that time, the biomass, the acceptable biological catch 
(ABC) and the status of the fisheries are reviewed and discussed. This 
information is then presented to the Council along with HG 
recommendations and comments from the Team and Subpanel. Following 
review by the Council and after hearing public comment, the Council 
makes its HG recommendation to NMFS.
    In November 2008, the Council held a public meeting in San Diego, 
California (73 FR 60680), and recommended an acceptable biological 
catch (ABC) or maximum harvest guideline (HG) of 66,932 mt for the 2009 
Pacific sardine fishing year. This ABC is the result of applying a 
biomass estimate of 662,886 mt to the harvest control rule established 
in the CPS FMP. This ABC/HG is 25 percent less than the ABC/HG adopted 
by the Council for the 2008 fishing season. The Council recommended 
that 1,200 mt of this available ABC/HG be initially subtracted from the 
ABC and reserved for a potential industry-based research project. NMFS 
would need to issue an Exempted Fishing Permit (EFP) for such an 
activity to occur. A decision on whether to issue an EFP will be made 
prior to the start of the second seasonal period (July 1, 2009). If it 
is determined that an EFP cannot be issued then the 1,200 mt will be 
added to the third period's directed harvest allocation prior to the 
start of that period.
    The Council recommended that the remaining 65,732 mt be used as the 
initial overall HG and be allocated across the seasonal periods 
established by Amendment 11 (71 FR 36999). The Council also recommended 
an incidental catch set-aside of 6,500 mt. Subtracting this set-aside 
from the initial overall HG establishes an initial directed harvest 
fishery of 59,232 mt and an incidental fishery of 6,500 mt. The purpose 
of the incidental fishery is to allow for the restricted incidental 
landings of Pacific sardine in other fisheries, particularly other CPS 
fisheries, if and when a seasonal directed fishery is closed. The 
larger set aside in the third and final period is intended to 
adequately account for incidental harvest by the winter market squid 
fishery and to also help ensure that sardine harvests do not exceed the 
ABC.
    The directed harvest levels and incidental set-aside would be 
initially allocated across the three seasonal allocation periods in the 
following way: January 1-June 30, 22,006 mt would be allocated for 
directed harvest with an incidental set-aside of 1,000 mt; July 1-
September 14, 25,293 mt would be allocated for directed harvest with an 
incidental set-aside of 1,000 mt; September 15-December 31, 11,933 mt 
would be allocated for directed harvest with an incidental set-aside of 
4,500 mt. If during any of the seasonal allocation periods the 
applicable adjusted directed harvest allocation is projected to be 
taken, fishing would be closed to directed harvest and only incidental 
harvest would be allowed. For the

[[Page 253]]

remainder of the period, any incidental Pacific sardine landings would 
be counted against that period's incidental set-aside. The proposed 
incidental fishery would also be constrained to a 20 percent by weight 
incidental catch rate when Pacific sardine are landed with other CPS so 
as to minimize the targeting of Pacific sardine. In the event that an 
incidental set aside is projected to be attained, all fisheries will be 
closed to the retention of Pacific sardine for the remainder of the 
period. If the set-aside is not fully attained or is exceeded in a 
given seasonal period, the directed harvest allocation in the following 
seasonal period would automatically be adjusted to account for the 
discrepancy. Additionally, if during any seasonal period the directed 
harvest allocation is not fully attained or is exceeded, then the 
following period's directed harvest total would be adjusted to account 
for this discrepancy as well.
    If the total HG or these apportionment levels for Pacific sardine 
are reached or are expected to be reached, the Pacific sardine fishery 
would be closed via appropriate rulemaking until it re-opens either per 
the allocation scheme or the beginning of the next fishing season. The 
Regional Administrator would publish a notice in the Federal Register 
announcing the date of such closures.
    Detailed information on the fishery and the stock assessment are 
found in the report ``Assessment of Pacific Sardine Stock for U.S. 
Management in 2009'' (see ADDRESSES).
    The formula in the CPS FMP uses the following factors to
    determine the HG:
    1. Biomass. The estimated stock biomass of Pacific sardine age one 
and above for the 2009 management season is 662,886 mt.
    2. Cutoff. This is the biomass level below which no commercial 
fishery is allowed. The FMP established this level at 150,000 mt.
    3. Distribution. The portion of the Pacific sardine biomass 
estimated in the EEZ off the Pacific coast is 87 percent and is based 
on the average historical larval distribution obtained from scientific 
cruises and the distribution of the resource according to the logbooks 
of aerial fish-spotters.
     4. Fraction. The harvest fraction is the percentage of the biomass 
above 150,000 mt that may be harvested. The fraction used varies (5-15 
percent) with current ocean temperatures; a higher fraction for warmer 
ocean temperatures and a lower fraction for cooler temperatures. Warmer 
ocean temperatures favor the production of Pacific sardine. For 2009, 
the fraction used was 15 percent, based on three seasons of sea surface 
temperature at Scripps Pier, California.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the CPS FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law, subject to further consideration after 
public comment.
    These proposed specifications are exempt from review under 
Executive Order 12866.
     An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act, 5 U.S.C. note. The IRFA describes the economic impact 
this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained at the beginning of this section in 
the preamble and in the SUMMARY section of the preamble. The results of 
the analysis are stated below. For copies of the IRFA, and instructions 
on how to send comments on the IRFA, please see the ADDRESSES section 
above.
    The purpose of this proposed rule is to implement the 2009 HG for 
Pacific sardine in the U.S. EEZ off the Pacific coast. The HG is 
proposed according to the regulations implementing the CPS FMP and 
establishes allowable harvest levels for Pacific sardine off the 
Pacific coast. The HG is determined using an environmentally-based 
formula accounting for the effect of ocean conditions on stock 
productivity.
    The HG is apportioned based on the following allocation scheme: 35 
percent of the HG is allocated coastwide on January 1; 40 percent of 
the HG, plus any portion not harvested from the initial allocation is 
then reallocated coastwide on July 1; and on September 15 the remaining 
25 percent, plus any portion not harvested from earlier allocations 
will be released. If the total HG or these apportionment levels for 
Pacific sardine are reached at any time, the Pacific sardine fishery is 
closed until either it re-opens per the allocation scheme or the 
beginning of the next fishing season. There is no limit on the amount 
of catch that any single vessel can take during an allocation period or 
the year; the HG and seasonal allocations are available until fully 
utilized by the entire CPS fleet.
    The small entities that would be affected by the proposed action 
are the vessels that compose the West Coast CPS finish fleet. 
Approximately 107 vessels are permitted to operate in the sardine 
fishery component of the CPS fishery off the U.S. West Coast; 63 
permits in the Federal CPS limited entry fishery off California (south 
of 39[deg] N. lat.), and a combined 44 permits in Oregon and 
Washington's state Pacific sardine fisheries. This proposed rule has an 
equal effect on all of these small entities and therefore will impact a 
substantial number of these small entities in the same manner. These 
vessels are considered small business entities by the U.S. Small 
Business Administration since the vessels do not have annual receipts 
in excess of $4.0 million. Therefore, there would be no economic 
impacts resulting from disproportionality between small and large 
business entities under the proposed action.
    The profitability of these vessels as a result of this proposed 
rule is based on the average Pacific sardine ex-vessel price per mt. 
NMFS used average Pacific sardine ex-vessel price per mt to conduct a 
profitability analysis because cost data for the harvesting operations 
of CPS finfish vessels was unavailable.
    For the 2008 fishing year the HG was set at 89,093 mt. 
Approximately 87,000 mt (58,000 in California and 29,000 in Oregon and 
Washington) of this HG was harvested during the 2008 fishing season 
with an estimated ex-vessel value of $14.5 million. Although the 2008 
HG was 42 percent lower than the HG for 2007, due to an increase in 
average annual ex-vessel price per pound annual ex-vessel revenue for 
2008 was similar to that in 2007.
    The proposed HG for the 2009 Pacific sardine fishing season 
(January 1, 2009 through December 31, 2009) is 65,732 metric tons (mt). 
This HG is 25 percent lower than the HG for 2008. If the fleet were to 
take the entire 2009 HG, and assuming a coastwide average ex-vessel 
price per mt of $168, the potential revenue to the fleet would be 
approximately $11 million. This would be similar to the average total 
coastwide ex-vessel value achieved from 2002-2007. Whether this will 
occur depends greatly on market forces within the fishery and on the 
regional availability of the resource to the fleets and the fleets' 
ability to find pure schools of Pacific sardine. A change in the market 
and/or the potential lack of availability of the resource to the fleets 
could cause a reduction in the amount of Pacific sardine that is 
harvested, in turn, reducing the total revenue to the fleet from 
Pacific sardine.
    There will likely be a drop in profitability based on this rule 
compared to last season due to the lower HG this year. However, from 
2002 through 2007 the average coastwide annual ex-vessel revenue was 
$11 million, therefore at current ex-vessel

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price per mt, the harvest guideline for 2009 should provide similar 
revenue as seen from 2002 through 2007.
    No significant alternatives to this proposed rule exist that would 
accomplish the stated objectives of the applicable statutes and which 
would minimize any significant economic impact of this proposed rule on 
the affected small entities. The CPS FMP and its implementing 
regulations require NMFS to set an annual HG for the Pacific sardine 
fishery based on the harvest formula in the FMP. The harvest formula is 
applied to the current stock biomass estimate to determine the ABC, 
from which the HG is then derived. Determining the annual HG merely 
implements the established procedures of the FMP with the goal of 
continuing to provide expected net benefits to the nation, regardless 
of what the specific annual allowable harvest of Pacific sardine is 
determined to be.
    There are no reporting, record-keeping, or other compliance 
requirements required by this proposed rule. Additionally, no other 
Federal rules duplicate, overlap or conflict with this proposed rule.

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

    Dated: December 29, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E8-31344 Filed 1-2-09; 8:45 am]
BILLING CODE 3510-22-S