[Federal Register Volume 77, Number 64 (Tuesday, April 3, 2012)]
[Proposed Rules]
[Pages 19991-19994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7986]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120312182-2170-01]
RIN 0648-XA882


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 to implement the annual catch limit (ACL), 
harvest guideline (HG), and associated annual reference points for 
Pacific sardine in the U.S. exclusive economic zone (EEZ) off the 
Pacific coast for the fishing season of January 1, 2012, through 
December 31, 2012. This rule is proposed according to the Coastal 
Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed 2012 
maximum HG for Pacific sardine is 109,409 metric tons (mt). The 
proposed initial overall commercial fishing HG that is to be allocated 
across the three allocation periods for sardine management is 97,409 
mt. This amount would be divided across the three seasonal allocation 
periods for the directed fishery the following way: January 1-June 30--
33,093 mt; July 1-September 14--37,964 mt; and September 15-December 
31--23,352 mt with an incidental set-aside of 1,000 mt for each of the 
three periods. This rule is intended to conserve and manage the Pacific 
sardine stock off the U.S. West Coast.

DATES: Comments must be received by May 3, 2012.

ADDRESSES: You may submit comments on this document identified by NOAA-
NMFS-2012-0055 by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov. 
To submit comments via the e-Rulemaking Portal, first click the 
``submit a comment'' icon, then enter NOAA-NMFS-2012-0055 in the 
keyword search. Locate the document you wish to comment on from the 
resulting list and click on the ``Submit a Comment'' icon on the right 
of that line.
     Mail: Submit written comments to Rodney R. McInnis, 
Regional Administrator, Southwest Region,

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NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
     Fax: (562) 980-4047.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will 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 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.
    Copies of the report ``Assessment of Pacific Sardine Stock for U.S. 
Management in 2012'' and the Environmental Assessment/Regulatory Impact 
Review for this action may be obtained from the Southwest Regional 
Office (see ADDRESSES).

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

SUPPLEMENTARY INFORMATION: During public meetings each year, the 
estimated biomass for Pacific sardine is presented to the Pacific 
Fishery Management Council's (Council) Coastal Pelagic Species (CPS) 
Management Team (Team), the Council's CPS Advisory Subpanel (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 the 
calculated overfishing limit (OFL) and available biological catch 
(ABC), annual catch limit (ACL) and harvest guideline (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 catch level recommendations to 
NMFS.
    The purpose of this proposed rule is to implement the 2012 ACL, HG 
and other annual catch reference points, including an OFL and an ABC 
that takes into consideration uncertainty surrounding the current 
estimate of biomass for Pacific sardine in the U.S. EEZ off the Pacific 
coast. The CPS FMP and its implementing regulations require NMFS to set 
these annual catch levels for the Pacific sardine fishery based on the 
annual specification framework in the FMP. This framework includes a 
harvest control rule that determines the maximum HG, the primary 
management target for the fishery, for the current fishing season. The 
HG is based, in large part, on the current 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 2012 management season is 988,385 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 2011 Council meeting, the Council adopted the 2012 
Assessment of the Pacific sardine resource and a Pacific sardine 
biomass estimate of 988,385 mt. Based on recommendations from its SSC 
and other advisory bodies, the Council recommended and NOAA Fisheries 
(NMFS) is proposing, an overfishing limit of 154,781 mt, an acceptable 
biological catch (ABC) of 141,289 mt, an annual catch limit of 141,289 
mt (equal to the ABC) and a maximum harvest guideline (HG) (HGs under 
the CPS FMP are operationally similar to annual catch targets (ACT)) of 
109,409 metric tons (mt) for the 2012 Pacific sardine fishing year. 
These catch specifications are based on the most recent stock 
assessment and the control rules established in the CPS FMP.
    The Council also recommended, and NMFS is proposing, that 97,409 mt 
be used as the initial overall commercial fishing HG to be allocated 
across the three allocation periods for sardine management. This number 
has been reduced from the maximum HG by 12,000 mt: (i) for potential 
harvest by the Quinault Indian Nation of up to 9,000 mt; and (ii) 3,000 
mt, which is initially reserved for potential use under an exempted 
fishing permit(s) (EFPs). The Council also recommended and NMFS is 
proposing that incidental catch set asides be put in place for each 
allocation 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 to reduce bycatch and allow for continued prosecution of other 
important CPS fisheries. These incidental set asides are allocated as 
shown in the following table, which also shows the adjusted directed 
harvest levels for each period in metric tons:

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                                                      January 1-June      July 1-       September 15-
                                                            30          September 14     December 31      Total
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Total Seasonal Allocation..........................     34,093 (35%)     38,964 (40%)     24,352 (25%)    97,409
Incidental Set Aside...............................            1,000            1,000            1,000     3,000
Adjusted Directed Harvest Allocation...............           33,093           37,964           23,352    94,409
----------------------------------------------------------------------------------------------------------------

    Although the 2012 HG is well below that of the ACL, additional 
inseason accountability measures are in place to ensure the fishery 
stays within the HG. 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, 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

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seasonal period, the directed harvest allocation in the following 
seasonal period would automatically be adjusted upward or downward 
accordingly 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 the 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 until it re-opens either per the allocation scheme or 
at the beginning of the next fishing season. The NMFS Southwest 
Regional Administrator would publish a notice in the Federal Register 
announcing the date of any such closure.
    The Council will hear proposals and comments on any potential EFPs 
at the March 2012 Council meeting, and at the April 2012 Council 
meeting it will make a final recommendation to NMFS on whether or not 
all or a portion of the 3,000 mt EFP set-aside should be allocated for 
use under any EFP(s). NMFS will likely make a decision on whether to 
issue an EFP for Pacific sardine sometime prior to the start of the 
second seasonal period (July 1, 2012). Any of the 3,000 mt that is not 
issued to an EFP will be rolled into the third allocation period's 
directed fishery. Any 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 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.
    In response to a request by the Quinault Indian Nation for the 
exclusive right to harvest Pacific sardine in 2012 in their Usual and 
Accustomed Fishing Area off the coast of Washington State, pursuant to 
their rights to fish under the 1856 Treaty of Olympia (Treaty with the 
Quinault), the Council recommended and NMFS approved an allocation of 
9,000 mt of sardine to the Quinault in 2012. NMFS will consult with 
Quinault Department of Fisheries staff and Quinault Fisheries Policy 
representatives on or near September 1, 2012 to review Quinault catch 
to-date, Oregon and Washington catch to-date and any other relevant 
information in an attempt to project tribal catch for the remainder of 
the season. The purpose of this consultation will be to determine 
whether any part of the 2012 Quinault Pacific sardine set-aside of 
9,000 mt will be moved into the non-tribal third period allocation that 
begins September 15.
    Detailed information on the fishery and the stock assessment are 
found in the report ``Assessment of the Pacific Sardine Resource in 
2011 for U.S. Management in 2012'' (see ADDRESSES).

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.
    Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), 
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 2012 annual 
specifications for Pacific sardine in the U.S. EEZ off the Pacific 
coast. The CPS FMP and its implementing regulations require NMFS to set 
an OFL, ABC, ACL and HG or ACT for the Pacific sardine fishery based on 
the harvest control rules in the FMP. The specific harvest control rule 
is applied to the current stock biomass estimate to derive the annual 
HG which is used to manage the directed commercial take of Pacific 
sardine.
    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 
will close 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 U.S. Small Business Administration defines small businesses 
engaged in fishing as those vessels with annual revenues of or below $4 
million. 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 Pacific sardine fisheries. The average annual per vessel revenue 
in 2010 for the West Coast CPS finfish fleet was well below $4 million; 
therefore, 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 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 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 2011 fishing year the HG was set at 50,526 mt. 
Approximately 47,000 mt (28,000 in California and 19,000 in Oregon and 
Washington) of this HG were harvested during the 2011 fishing season, 
for an estimated ex-vessel value of $10 million. Using these figures, 
the average 2011 ex-vessel price per mt of Pacific sardines was 
approximately $200.
    The proposed HG for the 2012 Pacific sardine fishing season 
(January 1, 2012 through December 31) is 109,409 metric tons (mt). This 
HG is 66 percent higher than the HG for 2011. If the fleet were to take 
the entire 2012 HG, and assuming a coastwide average ex-vessel price 
per mt of $190 (average of 2010 and 2011 ex-vessel), the potential 
revenue to the fleet would be approximately $21 million. Therefore the 
proposed rule will increase small entities' profitability compared to 
last season, due to the much higher HG this fishing season. Whether 
this will occur will depend somewhat on market forces within the 
fishery, and on the regional availability of the resource to the fleets 
and the fleets' ability to find pure

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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 potential total revenue to the fleet 
from Pacific sardine. However, due to the large increase in the HG 
compared to last year, even if changes in the market value occur, the 
fishery is likely to see an increase in total revenue compared last 
season. Additionally, unused sardine from the potential EFP or from the 
9,000-mt set-aside for use by the Quinault Indian Nation, might be used 
to supplement the amount available to the directed fishery of the third 
allocation period (September 15 through December 31).
    The revenue derived from harvesting Pacific sardine is also only 
one factor determining the overall revenue for a majority of the 
vessels in the CPS fleet, and, therefore, the economic impact to the 
fleet from the proposed action cannot 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. Vessels rely on multiple 
species for profitability because each CPS stock is highly associated 
with different ocean conditions and different time periods, and so are 
harvested at various times throughout the year. Because each species 
responds to ocean 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 relies on a group of 
species for annual revenues. Accordingly, even if sardine prices drop, 
such a drop will have only a small impact, if at all, on the profits of 
CPS fishery vessels.
    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.
    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.
    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: March 29, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-7986 Filed 4-2-12; 8:45 am]
BILLING CODE 3510-22-P