[Federal Register Volume 76, Number 219 (Monday, November 14, 2011)]
[Rules and Regulations]
[Pages 70362-70364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29309]



[[Page 70362]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 110606318-1655-02]
RIN 0648-BA68


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Amendment 13 to the Coastal Pelagic Species Fishery 
Management Plan; Annual Catch Limits

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

ACTION: Final rule.

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

SUMMARY: NMFS issues this final rule to implement Amendment 13 to the 
Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). This final 
rule implements parts of Amendment 13 to the CPS FMP, which is intended 
to ensure the FMP is consistent with advisory guidelines published in 
Federal regulations. Amendment 13 revised the framework process in 
place to set and adjust fishery specifications and management measures 
and modified this framework to include new specification reference 
points such as annual catch limit (ACL).

DATES: Effective December 14, 2011.

ADDRESSES: Copies of the CPS FMP as Amended through Amendment 13 and 
the Environmental Assessment/Regulatory Impact Review for Amendment 13, 
are available from Rodney R. McInnis, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802, 
or Donald O. McIssac, Executive Director, Pacific Fishery Management 
Council, 7700 NE. Ambassador Place, Suite 200, Portland, OR 97220-1384.

FOR FURTHER INFORMATION CONTACT: Joshua B. Lindsay, Sustainable 
Fisheries Division, NMFS, at (562) 980-4034 or Mike Burner, Pacific 
Fishery Management Council, at (503) 820-2280.

SUPPLEMENTARY INFORMATION: The CPS fishery in the U.S. exclusive 
economic zone (EEZ) off the West Coast is managed under the CPS FMP, 
which was developed by the Pacific Fishery Management Council (Council) 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (MSA). Species managed under the CPS FMP include Pacific sardine, 
Pacific mackerel, jack mackerel, northern anchovy, market squid and 
krill. The CPS FMP was approved by the Secretary of Commerce and was 
implemented by regulations that can be found at 50 CFR part 660, 
subpart I.
    The MSA was amended in 2007 to include new requirements for ACLs 
and accountability measures (AMs) and other provisions regarding 
preventing and ending overfishing and rebuilding fisheries. On February 
17, 2009, NMFS revised its guidelines implementing MSA National 
Standard 1 (January 16, 2009; 74 FR 3178) in response to these changes 
in the MSA. The revised guidelines explain NOAA's interpretation of the 
new statutory requirements for specifying ACLs at such levels that 
overfishing does not occur and that measures be taken to ensure 
accountability with these limits. The purpose of Amendment 13 is to 
amend the CPS FMP to comply with certain provisions in those revised 
advisory guidelines and to comply with the new requirement to establish 
a process for setting ACLs and AMs. Specifically, Amendment 13 revised 
the framework process to set and adjust fishery specification and 
management measures, and established a framework for specifying new 
reference points such as ACLs and AMs, as well as other provisions for 
preventing overfishing such as the potential setting of annual catch 
targets (ACTs).
    Additionally, Amendment 13 amended the FMP to better account for 
scientific and management uncertainty and to prevent overfishing 
through the following measures:
     Modify the existing harvest control rules for actively 
managed species (Pacific sardine and Pacific mackerel) to include a 
buffer or reduction in acceptable biological catch (ABC) relative to 
overfishing limit (OFL) to account for scientific uncertainty. This 
buffer will be recommended during the annual management cycle through a 
combination of scientific advice from the Scientific and Statistical 
Committee (SSC) and a policy determination of the Council.
     Maintain the default harvest control rules for monitored 
stocks (jack mackerel, northern anchovy and market squid) but modified 
as necessary to specify the new management reference points. ACLs would 
likely be specified for multiple years until such time as the species 
becomes actively managed or new scientific information becomes 
available. The current buffer of a 75-percent reduction in the ABC 
control rule (ABC equals 25 percent of OFL/MSY) will remain in use 
until recommended for modification by the SSC and by the Council 
through the annual harvest and management specification process and 
approved by NMFS.
     Add a mechanism for the use of sector-specific ACLs, ACTs 
and AMs. Although not a change to the FMP, the Council reaffirmed that 
all management unit species (MUS) currently in the FMP, including those 
species categorized as monitored species and prohibited harvest species 
(krill) are ``in the fishery'' and will remain as MUS. Amendment 13 
also adds Pacific herring (Clupea pallasii pallasii) and jacksmelt 
(Atherinopsis californiensis) to the FMP as ecosystem component (EC) 
species. Although the incidental catch of these species within CPS 
fisheries is extremely small, the intent of this action is to continue 
to specifically monitor the catches of these species and report catch 
estimates in the annual Stock Assessment and Fishery Evaluation report 
along with other incidental catch. In addition to the current 
ecological considerations in the FMP, the amendment also specifies that 
the Council will include ecological considerations when reviewing and/
or adopting status determination criteria (SDCs), ACLs, and ACTs.
    No substantive changes have been made to this rule from the 
proposed rule stage and no changes have been made to the regulatory 
text from the proposed rule.
    On June 28, 2011 NMFS published a proposed rule for Amendment 13 
soliciting public comments (76 FR 124). NMFS received two letters 
regarding the proposed rule to implement Amendment 13, including a 
letter of ``no comment'' submitted by U.S. Department of the Interior 
and one from two non-governmental organizations (NGO) that is addressed 
below.
    Comment 1: The majority of the points raised in the NGO comment 
related more to the CPS FMP as whole as opposed to specific changes 
being made by Amendment 13, and will not be addressed here. However, 
NMFS found the comments valuable and will consider them for future 
management planning, and will respond directly to the commenters about 
their concerns regarding matters outside the scope of this rulemaking. 
With regard to Amendment 13 and/or its implementing regulations the 
comment stated that revised ABC control rules for the actively managed 
stocks (Pacific sardine and Pacific mackerel) failed to properly 
articulate or provide an adequate buffer for scientific uncertainty 
with respect to OFL levels. Also with regard to the framework measures 
in Amendment 13 the comment stated that new framework for determining 
overfishing and the

[[Page 70363]]

formula for calculating OFL for actively managed species allows CPS to 
be harvest at levels higher than previously allowed and provides for 
less precautionary management than under the old framework. Specific to 
the regulations implementing Amendment 13, the comment also stated that 
the revised definition of a ``harvest guideline'' is not clear with 
respect to how it compares to an ACT. The comment also stated that an 
Environment Impact Statement (EIS) should have been prepared instead of 
an Environmental Assessment, that a wider range of alternatives should 
have been analyzed, and that proper scoping or a process for providing 
public comment did not occur.
    Response: NMFS believes the revised framework for ABC that uses a 
P*, or probability of overfishing determination, provides for an 
appropriate way to incorporate scientific uncertainty in the OFL to 
buffer against overfishing (i.e., exceeding the OFL). The ABC will be 
recommended to NMFS by the Council based on its preferred level of risk 
aversion. The ABC is based on a percentage reduction of the OFL as 
determined by an SSC determination on scientific uncertainty and a risk 
policy determined by the Council. In cases where scientific uncertainty 
([sigma]) associated with estimating an OFL is quantified by the SSC, 
the percentage reduction that defines the scientific uncertainty buffer 
and the ABC can be determined by translating the estimated [sigma] to a 
range of probability of overfishing (P*) values. The Council then 
selects a level of risk aversion by choosing an appropriate P* value. 
Each P* value is then matched to its corresponding BUFFER fraction that 
is applied to the OFL according to the ABC control rule.
    Under Amendment 13 overfishing will be determined for the finfish 
stocks based on new OFL formulas and not based on the existing ABC or 
harvest guideline (HG) formulas. Based on the guidance in the revised 
NS 1 guidelines the harvest levels that resulted from the existing ABC/
HG formulas were more analogous to ACL or ACT type levels as opposed to 
OFL levels. Within the new Amendment 13 framework, OFLs correspond with 
MSY levels which are in concert with the relationship between OFL, ABC 
and ACL described in the guidelines. Additionally, the maximum 
allowable catch levels (ACLs and associated ACTs), will still be set 
based on the same conservative formulas and principles that exist in 
the CPS FMP. These levels will be considered in conjunction with ABC 
control rules to prevent overfishing.
    With regard to the definitions of ``harvest guideline'' and ACT, 
the CPS FMP previously used the setting of harvest guidelines (HGs) in 
a similar way as to how ACTs are defined, as a management target. 
Because ACTs are an optional reference point and HGs were already in 
the FMP, NMFS decided to maintain the term HG for consistency purposes 
while recognizing that HGs will be used with the same objective as 
ACTs, to prevent the ACL from being exceeded.
    Regarding the comments about the National Environmental Policy Act 
(NEPA) analysis for Amendment 13, the EA showed that the implementation 
and adoption of Amendment 13 will not significantly adversely impact 
the quality of the human environment. Therefore an EIS is not necessary 
to comply with NEPA for this action. With regard to the range of 
alternatives, NMFS believes a reasonable number of alternatives were 
analyzed based on the nature of this action. Additionally, the 
alternatives analyzed were all reasonable, would all meet the purpose 
and need of the action, and were all objectively evaluated. The public 
had several opportunities to provide input on the development of the 
proposed action and EA. The Council process, which is based on 
stakeholder involvement, provides opportunities for public input on 
scoping and public comment on fishery management proposals during 
Council, subcommittee, and advisory body meetings. Meetings of the 
Council and its advisory bodies constitute the scoping process, 
involving the development of alternatives and consideration of the 
impacts of the alternatives: all meetings are announced in advance, and 
welcome public attendance and comments. Specifically the public had 
opportunity to provide input into this action and EA during the March 
and November 2009, and March and June 2010, Pacific Council meetings. 
Additionally, NMFS published a Federal Register notice on June 8, 2011, 
that announced the availability of the Amendment and draft EA and 
comments on the draft EA were accepted until August 8, 2011, providing 
the public 60 days to submit comments on the EA.

Classification

    The Administrator, Southwest Region, NMFS, determined that the 
Amendment 13 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.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here.
    No comments were received regarding this certification. As a 
result, a regulatory flexibility analysis was not required and none was 
prepared.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: November 8, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    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. Amend Sec.  660.502 by removing the definition of ``Monitored 
species (MS)'' and revising the definition of ``Harvest guideline'' to 
read as follows:


Sec.  660.502  Definitions.

* * * * *
    Harvest guideline means a specified numerical harvest objective 
that is not a quota. Attainment of a harvest guideline does not require 
complete closure of a fishery. It is operationally similar to an Annual 
Catch Target (ACT) (as defined at Sec.  600.310(f)(2) of this chapter).
* * * * *

0
3. Revise Sec.  660.508 to read as follows:


Sec.  660.508  Annual specifications.

    (a) The Regional Administrator will determine any harvest 
guideline, quota, Annual Catch Limit (ACL) (defined at Sec.  
600.310(f)(2)) or Annual Catch Target (ACT) (defined at Sec.  
600.310(f)(2) of this chapter) in accordance with the framework process 
in the FMP.
    (b) Any harvest guideline, quota, ACL, or ACT, including any 
apportionment between the directed fishery and set-

[[Page 70364]]

aside for incidental harvest, will be published in the Federal 
Register.
    (c) The announcement of each harvest guideline, quota, ACL or ACT 
will contain the following information if available or applicable:
    (1) The estimated biomass or MSY proxy on which the harvest 
guideline, quota, ACL or ACT was determined;
    (2) The portion, if appropriate, of the harvest guideline, quota, 
ACL or ACT set aside to allow for incidental harvests after closure of 
the directed fishery;
    (3) The estimated level of the incidental trip limit that will be 
allowed after the directed fishery is closed; and
    (4) The allocation, if appropriate, between Subarea A and Subarea 
B.
    (d) As necessary, harvest guidelines, quotas, OFLs (defined at 
Sec.  600.310(f)(2)), ABCs (defined at Sec.  600.310(f)(2) of this 
chapter), ACLs or ACTs, will receive public review according to the 
following procedure:
    (1) Meetings will be held by the Council's CPSMT and AP, where the 
estimated biomass and/or other biological or management benchmarks will 
be reviewed and public comments received. Each of these meetings will 
be announced in the Federal Register before the date of the meeting, if 
possible.
    (2) All materials relating to the estimated biomass and/or other 
biological or management benchmarks will be forwarded to the Council 
and its Scientific and Statistical Committee and will be available to 
the public from the Regional Administrator when available.
    (3) At a regular meeting of the Council, the Council will review 
the estimated biomass and/or other biological or management benchmarks 
and offer time for public comment. If the Council requests a revision, 
justification must be provided.
    (4) The Regional Administrator will review the Council's 
recommendations, justification, and public comments and base his or her 
final decision on the requirements of the FMP and other applicable law.

0
4. Revise Sec.  660.509 to read as follows:


Sec.  660.509  Accountability measures (season closures).

    (a) General rule. When the directed fishery allocation or 
incidental allocation is reached for any CPS species it shall be closed 
until the beginning of the next fishing period or season. Regional 
Administrator shall announce in the Federal Register the date of such 
closure, as well as any incidental harvest level(s) recommended by the 
Council and approved by NMFS.
    (b) Pacific Sardine. When the allocation and reallocation levels 
for Pacific sardine in Sec.  660.511(f) through (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.

[FR Doc. 2011-29309 Filed 11-10-11; 8:45 am]
BILLING CODE 3510-22-P