[Federal Register Volume 75, Number 8 (Wednesday, January 13, 2010)]
[Proposed Rules]
[Pages 1745-1747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-496]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0912281446-91447-01]
RIN 0648-XT32


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.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes a regulation to implement the annual harvest 
guideline (HG) and seasonal allocations for Pacific sardine in the U.S. 
exclusive economic zone (EEZ) off the Pacific coast for the fishing 
season of January 1, 2010, through December 31, 2010. This rule is 
proposed according to the Coastal Pelagic Species (CPS) Fishery 
Management Plan (FMP). The proposed 2010 acceptable biological catch 
(ABC) or maximum HG is 72,039 mt. 5,000 mt of this 72,039 mt would 
initially be set aside for use under an Exempted Fishing Permit (EFP), 
if issued, leaving the remaining 65,732 mt as the initial commercial 
fishing HG. That HG would be divided across the seasonal allocation 
periods in the following way: January 1-June 30, 22,463 mt would be 
allocated for directed harvest with an incidental set-aside of 1,000 
mt; July 1-September 14, 25,861 mt would be allocated for directed 
harvest with an incidental set-aside of 1,000 mt; September 15-December 
31, 11,760 mt would be allocated for directed harvest with an 
incidental set-aside of 1,000 mt with an additional 4,000 mt set aside 
to buffer against reaching the ABC. This rule is intended to conserve 
and manage Pacific sardine off the West Coast.

DATES:  Comments must be received by February 2, 2010.

ADDRESSES: You may submit comments on this proposed rule identified by 
0648-XT32 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: No comments will be posted for public viewing until 
after the comment period has closed. 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). You may submit attachments 
to electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of the report ``Assessment of Pacific Sardine Stock for U.S. 
Management in 2010'' 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) CPS Management Team (Team), the 
Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific 
and Statistical Committee (SSC). At that time, the biomass, the 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, Subpanel and SSC. Following 
review by the Council and after hearing public comment, the Council 
makes its HG recommendation to NMFS.
    In November 2009, the Council adopted and recommended to NMFS an 
ABC or maximum HG of 72,039 mt for the 2010 Pacific sardine fishing 
year. This ABC is based on a biomass estimate of 702,204 mt and the 
harvest control rule established in the CPS FMP. This ABC/HG is 
slightly higher than the ABC/HG for the 2009 fishing season,

[[Page 1746]]

which was 66,932 mt. The Council also recommended that 5,000 mt of the 
available 2010 ABC/HG be initially reserved for research activities 
that would be undertaken under a potential exempted fishing permit 
(EFP). In 2009, 2,400 mt was subtracted from the total HG for an EFP. 
The Council will hear proposals and comments on any potential EFPs at 
the March Council meeting and make a final recommendation to NMFS on 
whether or not to issue an EFP(s) for the 5,000 mt research set aside 
at their April 2010 Council meeting. NMFS will likely make a decision 
on whether or not to issue an EFP some time prior to the start of the 
second seasonal period (July 1, 2010). Any of the 5,000 mt that is not 
issued to an EFP will be rolled into the third allocation period's 
directed fishery. Any research set aside attributed to an EFP designed 
to be conducted during the closed fishing time in the second allocation 
period (prior to September 15), but not utilized, will roll into the 
third allocation period's directed fishery. Any research set aside 
attributed to an EFP designed to be conducted during closed fishing 
times in the third allocation, but not utilized, will not be re-
allocated.
    The Council recommended that the remaining 67,039 mt (HG of 72,039 
mt minus proposed 5,000 mt EFP set aside) be used as the initial 
overall fishing 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 3,000 mt and a management uncertainty 
buffer of 4,000 mt. Subtracting this set aside from the initial overall 
HG establishes an initial directed harvest fishery of 60,039 mt and an 
incidental fishery of 3,000 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-aside would be 
initially allocated across the three seasonal allocation periods in the 
following way: January 1-June 30, 22,463 mt would be allocated for 
directed harvest with an incidental set aside of 1,000 mt; July 1-
September 14, 25,861 mt would be allocated for directed harvest with an 
incidental set aside of 1,000 mt; September 15-December 31, 11,760 mt 
would be allocated for directed harvest with an incidental set aside of 
1,000 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 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 30 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 2010'' (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 2010 management season is 702,204 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 2010, 
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 Fishery 
Conservation and Management Act, the NMFS Assistant Administrator has 
determined that this proposed rule is consistent with the CPS FMP, 
other provisions of the Magnuson-Stevens Fishery Conservation and 
Management Act, and other applicable law, subject to further 
consideration after public comment.
    These proposed specifications are exempt from review under 
Executive Order 12866.
     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 
as follows:
    The purpose of this proposed rule is to implement the 2010 HG 
for Pacific sardine in the U.S. EEZ off the Pacific coast. 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. 
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 finfish fleet. 
Approximately 109 vessels are permitted to operate in the sardine 
fishery component of the CPS fishery off the U.S. West Coast; 65 
permits in the Federal CPS limited entry fishery off California 
(south of 39 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

[[Page 1747]]

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 2009 fishing year the maximum HG was set at 66,932 mt. 
The majority of the HG was harvested during the 2009 fishing season 
with an estimated coastwide ex-vessel value of $12.5 million. 
Although the 2009 HG was 25 percent lower than the HG for 2008, due 
to an increase in ex-vessel price per pound of sardine, coastwide 
ex-vessel revenue for 2009 was less than $2 million different than 
revenue for 2008 and above the average ex-vessel revenue achieved 
from 2002-2007.
    The proposed HG for the 2010 Pacific sardine fishing season 
(January 1, 2010 through December 31, 2010) is 72,039 mt. This HG is 
slightly higher than the HG for 2009 of 66,932 mt. If the fleet were 
to take the entire 2010 HG, and assuming a coastwide average ex-
vessel price per mt of $187, the potential revenue to the fleet 
would be approximately $13.5 million. This would be higher than 
average coastwide ex-vessel value achieved from 2002-2009. 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.
    However, the revenue derived from harvesting Pacific sardine is 
only one factor determining the overall revenue of a majority of the 
CPS fleet and therefore the economic impact to the fleet from the 
proposed action can not be viewed in isolation. CPS finfish vessels 
typically harvest a number of other species, including anchovy, 
mackerel, squid, and tuna, making Pacific sardine only one component 
of a multi-species CPS fishery. A reliance on multiple species is a 
necessity because each CPS stock is highly associated to present 
ocean and environmental conditions. Because each species responds to 
such conditions in its own way, not all CPS stocks are likely to be 
abundant at the same time; therefore as abundance levels and markets 
fluctuate, the CPS fishery as a whole has endured by depending on a 
group of species.
    Based on the disproportionality and profitability analysis 
above, this rule if adopted, will not have a significant economic 
impact on a substantial number of these small entities.
    As a result, an Initial Regulatory Flexibility Analysis is not 
required and none has been prepared.
    This action does not contain a collection-of-information 
requirement for purposes of the Paper Reduction Act.

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

    Dated: January 7, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-496 Filed 1-12-10; 8:45 am]
BILLING CODE 3510-22-S