[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Rules and Regulations]
[Pages 7826-7829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3531]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.0812171612-9134-02]
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:  Final rule; closure of directed fishing for Pacific sardine.

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SUMMARY:  NMFS issues this final rule to implement the annual harvest 
guideline (HG) and management measures 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 has been 
determined 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. 
This rule also announces that the directed fishing harvest total for 
the first allocation period (January 1 - June 30) has been reached and 
therefore directed fishing for Pacific sardine is now closed until July 
1, 2009.

DATES:  Effective February 20, 2009 through December 31, 2009, except 
for the directed harvest closure that is effective through June 30, 
2009.

ADDRESSES:  Copies of the report ``Assessment of Pacific Sardine Stock 
for U.S. Management in 2008'' or the Final Regulatory Flexibility 
Analysis (FRFA) prepared for this final rule may be obtained from the 
Southwest Regional Office, Rodney R. McInnis, Regional Administrator, 
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, 
CA 90802.

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

SUPPLEMENTARY INFORMATION: The CPS FMP, which is implemented by 
regulation at 50 CFR part 660, subpart

[[Page 7827]]

I, 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 adopted, and NMFS then approved an 
ABC or maximum 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 recommended by the Council and 
adopted by NMFS for the 2008 fishing season. The Council recommended, 
and NMFS approved, 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 will need to issue an Exempted Fishing Permit 
(EFP) for such an activity to occur and will be requesting comments 
from the public on such an EFP prior to a decision being made. A 
decision on whether to issue an EFP will be made prior to the start of 
the second seasonal period which is 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 also recommended, and NMFS approved, 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) and that an 
incidental catch set-aside of 6,500 mt be established. 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 directed harvest levels and incidental set-asides are initially 
allocated across the three seasonal allocation periods in the following 
way: January 1-June 30, 22,006 mt is allocated for directed harvest 
with an incidental set-aside of 1,000 mt; July 1-September 14, 25,293 
mt is allocated for directed harvest with an incidental set-aside of 
1,000 mt; September 15-December 31, 11,933 mt is 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, the fishery will be closed to 
directed harvest, except for live bait harvest, and only incidental 
harvest will be allowed. For the remainder of the period, any 
incidental Pacific sardine landings will be counted against that 
period's incidental set-aside. The incidental fishery will 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. The above in-season harvest restrictions are not 
intended to affect the operation of the live bait portion of the 
Pacific sardine fishery.
    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 will publish a notice in the Federal Register 
announcing the date of such closures.
    This rule announces that based on the best available information 
recently obtained from the fishery, the directed fishing harvest total 
for the first allocation period (January 1 - June 30) has been reached 
and therefore directed fishing for Pacific sardine is now closed until 
July 1, 2009. Fishing vessels must be at shore and in the process of 
offloading at the time of closure.
    For further background information on this action please refer to 
the preamble of the proposed rule (75 FR 252, January 5,2009).
    NMFS received one comment regarding the Pacific sardine annual 
specifications.
    Comment 1: The commenter stated that the HG formula does not 
adequately take into account ecosystem needs and that of the two 
biomass estimates put forth by the SSC for consideration by the Council 
for management in 2009 that the lower biomass estimate and thus the 
lower resulting HG should have been chosen.
    Response: NMFS agrees that Pacific sardine is an important prey 
component of the California Current ecosystem and as such the current 
harvest control rule formula used to determine the harvest guideline 
for Pacific sardine takes into account ecosystem as well as physical 
environmental factors. This is achieved by means of a formula that, 
after overall biomass is determined, takes into account the viability 
of the sardine stock and its value as forage when determining the 
guideline number. This is accomplished by a harvest rate or harvest 
``fraction'' that is adjusted between 5 percent and 15 percent based on 
current ocean temperatures. Because past shifts in sardine productivity 
are linked with warm or cold ocean regimes a higher fraction is 
allotted for harvest when ocean temperatures are warmer and sardine 
production is greater, while the lower fraction is used when ocean 
temperatures are cooler and sardine production is decreased. In 
addition, a 150,000 mt stock biomass threshold, or ``cutoff'', is 
established below which no harvest is allowed in order to ensure a 
minimum spawning biomass is protected. Each year this ``cutoff'' number 
of 150,000 mt is subtracted from the overall biomass number before the 
harvestable biomass is calculated to take into account the importance 
of Pacific sardine as forage.
    During the November 2008 Council meeting, the Council was presented 
an updated assessment of the Pacific sardine biomass along with outputs 
from two different model runs which resulted in two different biomass 
estimates (662,886 mt and 586,369 mt) and ultimately two different HGs 
(66,932 mt and 56,946 mt). The model run that estimated a biomass of 
662,886 mt adhered to the existing assessment configuration (approved 
in 2007) while introducing the most recent data (i.e., 2007-08 
landings, 2007-08 age/length distributions, and the Daily Egg

[[Page 7828]]

Production Method estimate produced from the California Cooperative 
Oceanic Fisheries Investigation survey in April 2008), but did not meet 
some of the acceptance criteria for an updated assessment under the CPS 
Terms of Reference (TOR). In contrast, the model run that estimated a 
biomass of 586,369 mt adhered more closely to the CPS TOR for updated 
assessments but did not include the most recent data described above. 
The SSC determined that both assessment results were based on the best 
available science, but that it was not possible to identify which 
better represents the ``best available science,'' and therefore there 
was no scientific basis for choosing one over the other.
    The Council decided to recommend the higher of the two assessment 
results because it incorporated the most recent data, was determined by 
the experts on the SSC to reflect the ``best available science,'' and 
because the resulting HG would lessen the economic losses likely to 
result from reducing the HG compared to 2008. NMFS believes the 
recommendation of the Council was appropriate because the conservative 
nature of the harvest control rule for Pacific sardine (as described in 
this section) ensures the HG will not threaten the Pacific sardine 
stock, the fact that both assessment results constituted the best 
available science, and because the higher HG provides a greater 
opportunity to achieve optimum Yield.

Classification

    The Administrator, Southwest Region, NMFS, determined that this 
final rule is necessary for the conservation and management of the CPS 
fishery and that it is consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act and other applicable laws.
    NMFS finds good cause to waive the requirement to provide prior 
notice and opportunity for public comment pursuant to the authority set 
forth at 5 U.S.C. 553(b)(B) for the closure of the January 1-June 30 
directed harvest of Pacific sardine. For the reasons set forth below, 
notice and comment procedures are impracticable and contrary to the 
public interest. These measures respond to the best available 
information and are necessary for the conservation and management of 
the Pacific sardine resource. The most recent data from the fishery, 
received by NMFS on February 1, 2009, shows that reported landings as 
well as the current rate of fishing are significantly greater than 
anticipated. Based on this data, NMFS believes that the directed 
harvest allocation for the period January 1 through June 30 will be 
attained much sooner than predicted and prior to publication of this 
rulemaking. A delay in effectiveness would cause the fishery to further 
exceed the in-season directed harvest level. These seasonal harvest 
levels are important mechanisms in preventing overfishing and managing 
the fishery at optimum yield. The established directed and incidental 
harvest allocations are designed to allow fair and equitable 
opportunity to the resource by all sectors of the Pacific sardine 
fishery and to allow access to other profitable CPS fisheries, such as 
squid and Pacific mackerel. Many of the same fishermen who harvest 
Pacific sardine rely on these other fisheries for a significant portion 
of their income. For the same reasons, NMFS finds good cause under 5 
U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for both 
the establishment of the harvest guideline and closure of the January 1 
June 30 directed harvest. To help keep the regulated community informed 
of the potential for an early closure, NMFS advised the CPS Advisory 
Subpanel that based on current landings directed harvest would likely 
be closed before the end of February. The Subpanel is comprised of 
representatives from all sectors and regions of the sardine industry, 
including processors, fishermen, user groups, conservation groups and 
fishermen association representatives. As landing totals become 
available, they are also posted on NMFS' Southwest Regional Office 
website, http://swr.nmfs.noaa.gov/. NMFS will also announce this the 
harvest guidelines and closure through other means available, including 
fax, email, and mail to fishermen, processors, and state fishery 
management agencies. Therefore, NMFS finds that there is good cause to 
waive the 30-day delay in effectiveness in this circumstance.
    This final rule is exempt from Office of Management and Budget 
review under Executive Order 12866.
    No issues were raised by public comments in response to the IRFA or 
on the economic impacts of the rule generally. Therefore, no changes 
were made to the IRFA. 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 FRFA are stated below. For copies of 
the FRFA please see the ADDRESSES section above.
    The purpose of this final rule is to implement the 2009 HG for 
Pacific sardine in the U.S. EEZ off the Pacific coast. The HG is 
promulgated 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 are affected by this action are the vessels 
that compose the U.S. West Coast CPS finfish fleet. Approximately 107 
vessels are permitted to operate in the sardine fishery component of 
the CPS fishery: 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 final 
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 this action.
    The profitability of these vessels as a result of this final rule 
are 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

[[Page 7829]]

average annual ex-vessel price per pound annual ex-vessel revenue for 
2008 was similar to that in 2007.
    The 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 2008 HG. 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 final 
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 price per mt, the 
harvest guideline for 2009 should provide similar revenue as seen from 
2002 through 2007.
    No significant alternatives to this final 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, recordkeeping, or other compliance 
requirements required by this final rule. Additionally, no other 
Federal rules duplicate, overlap or conflict with this final rule.

Small Business Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a notice to fishermen that also serves as a 
small entity compliance guide (guide) was prepared and will be 
distributed to fishermen and processors. The guide will also be 
available on the internet at http://swr.nmfs.noaa.gov. Copies of this 
final rule and guide, i.e. notice to fishermen, will be available upon 
request from the Southwest Regional Office (see ADDRESSES).

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

    Dated: February 12, 2009.
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-3531 Filed 2-13-09; 4:15 pm]
BILLING CODE 3510-22-S