[Federal Register Volume 76, Number 101 (Wednesday, May 25, 2011)]
[Rules and Regulations]
[Pages 30276-30279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12981]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 110111018-1279-03]
RIN 0648-XA109


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.

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SUMMARY: NMFS issues this final rule 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, 2011, through December 31, 2011. These 
specifications have been determined according to the Coastal Pelagic 
Species (CPS) Fishery Management Plan (FMP). The 2011 maximum HG for 
Pacific sardine is 50,526 metric tons (mt), of which 4,200 mt is 
initially set aside for potential use under Exempted Fishing Permits 
(EFPs). The remaining 46,326 mt, constituting the initial commercial 
fishing HG, has been divided across the seasonal allocation periods in 
the following way: January 1-June 30--15,214 mt is allocated for 
directed harvest with an incidental set-aside of 1,000 mt; July 1-
September 14--17,530 mt is allocated for directed harvest with an 
incidental set-aside of 1,000 mt; September 15-December 31--8,582 mt is 
allocated for directed harvest with an incidental set-aside of 1,000 
mt, plus an additional 2,000 mt set aside to buffer against reaching 
the total HG. This rule is intended to conserve and manage Pacific 
sardine off the West Coast.

DATES: Effective June 24, 2011 through December 31, 2011.

ADDRESSES: Copies of the report ``Assessment of Pacific Sardine Stock 
for U.S. Management in 2011'' may be obtained from the Southwest 
Regional Office (see ADDRESSES).

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

SUPPLEMENTARY INFORMATION: The CPS FMP, which was implemented by 
publication of a 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. Conversely, 
annual biomass estimates are not currently calculated for species that 
are classified as monitored stocks (jack mackerel, northern anchovy, 
and market squid).
    During public meetings each year, the estimated 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 Sub panel (Subpanel) and the Council's 
Scientific and Statistical Committee (SSC), and the biomass and the 
status of the fisheries are reviewed and discussed. The biomass 
estimate 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 adopts a biomass 
estimate and makes its HG recommendation to NMFS.
    This rule implements the 2011 HG for Pacific sardine in the U.S. 
EEZ off the Pacific coast, that is between 3 and 200 nautical miles 
seaward of the low water line along the coast. The CPS FMP and its 
implementing regulations require NMFS to set an annual HG for the 
Pacific sardine fishery based on the annual specification framework in 
the FMP. This framework includes a harvest

[[Page 30277]]

control rule that determines what the maximum HG for the current 
fishing season will be, based, in large part, on the estimate of stock 
biomass. The harvest control rule in the CPS FMP is HG = [(Biomass-
Cutoff) * Fraction * Distribution] with the parameters described as 
follows:
    1. Biomass. The estimated stock biomass of Pacific sardine age one 
and above for the 2011 management season is 537,173 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.
    At the November 2010 Council meeting, the Council adopted the 2010 
Assessment of the Pacific Sardine Resource in 2010 for U.S. management 
in 2011, and a Pacific sardine biomass estimate of 537,173 mt. When 
this biomass estimate is applied to the harvest control rule for 
Pacific sardine in the CPS FMP, the resulting maximum HG is 50,526 mt. 
For the 2011 Pacific sardine fishing year, the Council recommended, and 
NMFS has approved, a maximum HG of 50,526 mt. Similar to the action 
taken in 2009 and 2010, the Council also recommended, and NMFS 
approved, that 4,200 mt of the available 2011 HG be initially reserved 
for fishing/research activities that would be undertaken under 
potential EFPs.
    NMFS will likely make a decision on whether to issue EFPs for 
Pacific sardine some time prior to the start of the second seasonal 
period (July 1, 2011). Any of the 4,200 mt that is not issued or 
designated to be issued to EFPs will be rolled into the third 
allocation period's directed fishery. Any set-aside attributed to EFPs 
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 set-aside 
attributed to EFPs designed to be conducted during closed fishing times 
in the third allocation, but not utilized, will not be re-allocated.
    The Council also recommended, and NMFS approved, that the remaining 
46,326 mt (HG of 50,526 mt minus proposed 4,200 mt EFP set-aside) be 
used as the initial overall commercial fishing HG for Pacific sardine, 
and that this amount be allocated across the seasonal periods 
established by Amendment 11 (71 FR 36999, June 29, 2006). The Council 
recommended incidental catch set-asides of 1,000 mt per allocation 
period, and an additional management uncertainty buffer of 2,000 mt in 
the third period. The purpose of the incidental set-aside allotments 
and allowance of an incidental catch-only fishery is to allow for the 
restricted incidental landings of Pacific sardine in other fisheries, 
particularly other CPS fisheries, when a seasonal directed fishery is 
closed. The additional management buffer in the third period is due to 
the predictive difficulties associated with closing the fishery, and to 
help ensure that the fishery does not exceed the maximum HG.
    Therefore, for the 2011 Pacific sardine fishing season, the maximum 
HG is 50,526 mt, and the directed harvest levels and incidental set-
asides are initially allocated across the three seasonal allocation 
periods in the following way: from January 1-June 30, 15,214 mt is 
allocated for directed harvest with an incidental set aside of 1,000 
mt; from July 1-September 14, 17,530 mt is allocated for directed 
harvest with an incidental set aside of 1,000 mt; and from September 
15-December 31, 8,582 mt is 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 will be closed for the remainder of 
the allocation period to directed harvest and only incidental harvest 
is allowed. For the remainder of the period, any incidental Pacific 
sardine landings are counted against that period's incidental set-aside 
and the catch of Pacific sardine is 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, the 
incidental fishery will be closed 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 will be automatically adjusted (upward or downward) 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 will be adjusted 
accordingly 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 
will be closed until it re-opens either per the allocation scheme or 
the beginning of the next fishing season. The NMFS Southwest Regional 
Administrator will publish a notice in the Federal Register announcing 
the date of any such closure.
    Although it is not being implemented through this action, for the 
2011 Pacific sardine fishing season the Council also recommended an 
overfishing limit (OFL) of 92,767 mt and an Acceptable Biological Catch 
(ABC) and Annual Catch Limit (ACL) of 84,681 mt. The HG for the 2011 
fishing season is operationally similar to an Annual Catch Target (ACT) 
(as defined at Sec.  600.310(f)(2)). These reference points are in 
accordance with the proposed Amendment 13 to the CPS FMP, on which the 
Council took final action on in June 2010, and that will undergo review 
by NMFS. The intent of Amendment 13 is to revise relevant sections of 
the CPS FMP to ensure consistency with the revised National Standard 1 
(NS1) guidelines.
    On January 27, 2011 NMFS published a proposed rule for this action 
soliciting public comments (76 FR 4854). NMFS received two comments 
regarding the Pacific sardine annual specifications.
    Comment 1: One comment voiced concern regarding the parameters used 
in the HG control rule and urged further examination of the parameters 
for potential improvements in the future with particular reference to 
Pacific sardine being a forage species.
    Response: The proposed rule was not intended to solicit comments on 
the existing HG control rule. That said, 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 takes into account Pacific sardine's 
ecological role as forage. The current harvest control was chosen from 
a wide range of FMP harvest policies based on analysis of a variety of 
measures of performance. Of these performance measures, six were chosen 
as priority considerations for determining which harvest policy to 
chose; three related specifically to sardine's role as forage in the 
California Current ecosystem, and three stemmed from an interest in 
maintaining a predicable and constant flow of catch and revenues over 
the long term. The current harvest policy was chosen because it is the 
most precautionary as

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related to conserving sardine as forage, while still providing long-
term consistent fishing yields.
    Comment 2: The second commenter also recommended that a more 
conservative HG be adopted for the 2011 fishing season, in part based 
on alternative model runs in the stock assessment. Although not related 
to the current action, the commenter also stated that it should be 
determined that Pacific sardine is overfished and that Pacific sardine 
is experiencing overfishing, both on an international scale (combined 
United States, Canada and Mexico catches) and in the United States.
    Response: The action being taken by this final rule is the 
implementation of the 2011 Pacific sardine HG and management measures. 
For the 2011 Pacific sardine management cycle, an updated assessment 
for Pacific sardine was conducted by a stock assessment team and 
reviewed by a stock assessment review panel consisting of members of 
the CPS subcommittee of the SSC, the CPSMT, and a representative of the 
CPSAS in October 2010 in La Jolla, CA. This assessment found an 
estimated Pacific sardine biomass of 537,173 metric tons (mt). This 
assessment was subsequently reviewed by the full SSC at the November 
2010 Council meeting, where they recommended it for adoption by the 
Council as the best available science for the management of Pacific 
sardine in 2011. Other model runs that may have been completed by the 
stock assessment team (STAT) that resulted in different estimates of 
biomass were done solely for the purposes of sensitivity and 
uncertainty analysis, and were determined by the STAT and SSC not to be 
the best available science. Therefore, NFMS has determined that the 
biomass estimate used in the 2011 HG calculation is the appropriate 
biomass number for use in management.
    NMFS recognizes that the 2011 Pacific sardine assessment indicates 
a continued decline in sardine biomass. This decline has also led NMFS 
and the Council to recommend the lowest harvest level since the onset 
of Federal sardine management in 2000, a direct result of the 
precautionary nature of the harvest control rule. The conservative and 
precautionary nature of the harvest control rule can be seen when 
comparing the biomass estimates and HGs from 2010 and 2011. In 2010 the 
biomass estimate was 702,204 mt and the resulting HG was 72,039 mt, 
only 10 percent of the biomass. Because of the precautionary nature of 
the harvest control rule, the approximately 23 percent decline in 
biomass in 2011 to 537,173 mt, resulted in a 30 percent decrease in the 
HG. The 2011 HG is 50,526 mt, or only 9 percent of the biomass. This 
reduction in allowable harvest from 2010 to 2011 is a direct result of 
the precautionary nature of the harvest control rule that reduces 
allowable harvest levels as biomass declines.
    The commenter also requested that Pacific sardine be considered 
overfished. According to standards of the FMP, Pacific sardine is 
overfished when its biomass declines below 50,000 mt. The 2011 biomass 
estimate for Pacific sardine is 537,173 mt, therefore Pacific sardine 
is not overfished. Additionally, the harvest guideline control rule 
explicitly protects the stock from approaching an overfished condition 
through the use of a cutoff parameter that is three times that of the 
overfished level, or 150,000 mt. Due to this cutoff parameter, the 
harvest guideline will equal zero, and therefore fishing will not be 
allowed, when biomass declines to 150,000 mt, well above the overfished 
level of 50,000 mt. Of all CPS, sardine productivity is most strongly 
affected by environmental variation. Favorable and unfavorable periods 
for sardine tend to occur in cycles, meaning that periods of low 
abundance for sardine are probably inevitable, even in the absence of 
fishery. For this reason, Bmsy is not used as a maximum 
sustainable yield (MSY) reference point for sardine and Bmsy 
is not established in the FMP, contrary to statements made by the 
commenter.
    Additionally, the commenter requested that NMFS determine 
overfishing of Pacific sardine is occurring. Overfishing occurs 
whenever a stock is subjected to a level of fishing mortality or annual 
total catch that jeopardizes the capacity of a stock to produce MSY on 
a continuing basis. The 2010 Pacific sardine HG was 72,039 mt, of which 
approximately 67,000 mt of sardine were landed, therefore not exceeding 
the HG. In 2009 the U.S. HG, or optimum yield (OY), of 66,932 mt was 
exceeded by approximately 150 mt or 0.2 percent. It was determined that 
overfishing did not occur that year because the CPS FMP recognizes that 
catch levels resulting from the HG control rule are more conservative 
than MSY levels and therefore overfishing occurs only when the HG is 
exceeded by a significant amount. In the context of a highly productive 
stock such as sardine, exceeding the HG by 0.2 percent was not enough 
to jeopardize its capacity to produce MSY and therefore overfishing did 
not occur. To ensure the HG was not exceeded in 2010, new management 
measures were put in place by the Council and NMFS for the 2010 fishing 
season that allowed NMFS to close the fishery in a timely manner and 
the HG was not exceeded.
    Finally, with regard to a concern that fishing might exceed a 
combined U.S., Mexico and Canada overfishing limit, Pacific sardine is 
not managed under an international agreement, and therefore there is 
not a total overfishing level. NFMS recognizes, however, that 
management of transboundary stocks, such as Pacific sardine, is one of 
the more difficult problems in managing CPS. In the absence of a 
cooperative management agreement, the current approach in the CPS FMP 
sets harvest levels for U.S. fisheries by prorating the total target 
harvest level according to the portion of the stock estimated to by in 
U.S. waters on average. The primary advantage of prorating the total 
target harvest level is that U.S. fisheries can be managed unilaterally 
in a responsible manner that is consistent with the MSA. Mexican and 
Canadian landings are not considered explicitly when harvest levels for 
U.S. waters is determined, so U.S. fishermen are not penalized directly 
for Mexican and Canadian harvests. However, the allowable harvest level 
in U.S. waters depends on current biomass estimates, so U.S. harvest 
will be reduced if the stock is depleted by fishing in either Mexico or 
Canada.

Classification

    The Administrator, Southwest Region, NMFS, determined that this 
action 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 is exempt from Office of Management and Budget 
review under Executive Order 12866.
    No issues were raised by public comments in response to the Initial 
Regulatory Flexibility Analysis (IRFA) prepared pursuant to the 
Regulatory Flexibility Act for this action or on the economic impacts 
of the rule generally. Therefore, the Final Regulatory Flexibility 
Analysis (FRFA) contains no changes from 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 action is to implement the 2011 HG for Pacific 
sardine in the U.S. EEZ off the Pacific

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coast. The CPS FMP and its implementing regulations require NMFS to set 
an annual HG for the Pacific sardine fishery based on the harvest 
control rule in the FMP. The harvest control rule is applied to the 
current stock biomass estimate to derive the annual HG. 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 108 vessels are permitted to operate in the sardine 
fishery component of the CPS fishery off the U.S. West Coast; 64 
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-permitted Pacific sardine fisheries. The U.S. Small Business 
Administration defines small businesses engaged in fishing as those 
vessels with annual revenues of or below $4 million. The average annual 
per vessel revenue in 2010 for the West Coast CPS finfish fleet was 
well below $4 million, and all of these vessels therefore are 
considered small businesses under the RFA. Because each affected vessel 
is a small business, 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. Accordingly, 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 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 2010 fishing year, the maximum HG was set at 72,039 mt. 
Approximately 66,000 mt of the HG was harvested during the 2010 fishing 
season, with an estimated total coastwide ex-vessel value of $12.2 
million. Using these figures, the 2010 ex-vessel price per mt of 
Pacific sardines was $185.
    The HG for the 2011 Pacific sardine fishing season (January 1, 2011 
through December 31, 2011) is 50,526 mt. This HG is approximately 25% 
less than the directed fishing HG for 2010 of 68,039 mt. This decrease 
in HG is due to a decrease in the coastwide Pacific sardine biomass 
from which the HG is directly derived.
    If the fleet were to take the entire 2011 HG, and using the 2010 
ex-vessel average price of $185 per mt of Pacific sardine, the total 
potential revenue for the entire fleet would be approximately $9.3 
million. This decrease would be slightly less than the average 
coastwide total ex-vessel value achieved from 2001-2010 of 
approximately $11.5 million. There will also likely be a drop in 
profitability based on this rule compared to last season due the lower 
HG this fishing season. 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 rate 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 which, in 
turn, would reduce 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.
    No significant alternatives to this rule were considered or exist 
that would accomplish the stated objectives of the applicable statutes, 
and which would minimize any significant economic impact of this 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 control rule in the FMP. The harvest 
control rule is applied to the current stock biomass estimate to 
determine what the HG for that fishing season will be; as biomass 
increases so will the HG, conversely as biomass decreases so does the 
HG. The determination of 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 the specific 
annual allowable harvest levels for the Pacific sardine fishery.
    There are no reporting, record-keeping, or other compliance 
requirements required by this rule. Additionally, no other Federal 
rules duplicate, overlap or conflict with this rule.
    This action does not contain a collection-of-information 
requirement for purposes of the Paper Reduction Act.

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 is also 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: May 20, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-12981 Filed 5-24-11; 8:45 am]
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