[Federal Register Volume 78, Number 58 (Tuesday, March 26, 2013)]
[Rules and Regulations]
[Pages 18249-18251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06901]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120924487-3221-02]
RIN 0648-XC263


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 catch 
limit (ACL), harvest guideline (HG), annual catch target (ACT) and 
associated annual reference points for Pacific mackerel in the U.S. 
exclusive economic zone (EEZ) off the Pacific coast for the fishing 
season of July 1, 2012, through June 30, 2013. These specifications 
were determined according to the Coastal Pelagic Species (CPS) Fishery 
Management Plan (FMP). The 2012-2013 ACL or maximum HG for Pacific 
mackerel is 40,514 metric tons (mt). The proposed ACT, which will be 
the directed fishing harvest target, is 30,386 mt. If the fishery 
attains the ACT, the directed fishery will close, reserving the 
difference between the ACL and ACT (10,128 mt) as a set aside for 
incidental landings in other CPS fisheries and other sources of 
mortality. This rule is intended to conserve and manage the Pacific 
mackerel stock off the U.S. West Coast.

DATES: Effective March 26, 2013 through June 30, 2013.

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

SUPPLEMENTARY INFORMATION: During public meetings each year, the 
estimated biomass for Pacific mackerel 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), where the 
biomass and the status of the fisheries are

[[Page 18250]]

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) and/or annual catch target (ACT) 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.
    NMFS is implementing through this rule the 2012-2013 ACL, HG, ACT 
and other annual catch reference points, including the OFL and an ABC 
that takes into consideration uncertainty surrounding the current 
estimate of biomass, for Pacific mackerel in the U.S. EEZ off the 
Pacific coast. (The EEZ off the Pacific Coast encompasses ocean waters 
seaward of the outer boundary of state waters, which is 3 nautical 
miles off the coast, out to a line 200 nautical miles from the coast.) 
The CPS FMP and its implementing regulations require NMFS to set these 
annual catch levels for the Pacific mackerel 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. This 
level is reduced from the Maximum Sustainable Yield/OFL level for 
economic and ecological considerations. 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 mackerel for the 
2012-2013 management season is 211,126 mt.
    2. Cutoff. This is the biomass level below which no commercial 
fishery is allowed. The FMP established this level at 18,200 mt.
    3. Fraction. The harvest fraction is the percentage of the biomass 
above 18,200 mt that may be harvested.
    4. Distribution. The average portion (currently 70%) of the total 
Pacific mackerel biomass that is estimated to be in the U.S. EEZ off 
the Pacific coast, 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.
    At the June 2012 Council meeting, the Council recommended 
management measures for the Pacific mackerel fishery. These management 
measures were based on the 2011 full stock assessment, which estimated 
the biomass of Pacific mackerel to be 211,126 mt. The 2011 full stock 
assessment of Pacific mackerel was reviewed by a Stock Assessment 
Review Panel in May 2011, and was approved in June 2011 by the SSC as 
the best available science for use in management. Based on 
recommendations from the Council's SSC and other advisory bodies, the 
Council recommended and NOAA Fisheries (NMFS) is implementing, an OFL 
of 44,336 mt, an ABC of 42,375 mt, an ACL and maximum harvest guideline 
(HG) of 40,514 mt, and an ACT of 30,386 mt for the 2012-2013 Pacific 
mackerel fishing year. These catch specifications are based on the 
biomass estimate for Pacific mackerel and the control rules established 
in the CPS FMP.
    If the ACT is attained, the directed fishery will close, and the 
difference between the ACL and ACT (10,128 mt) will be reserved as a 
set aside for incidental landings in other CPS fisheries and other 
sources of mortality. In that event, incidental harvest measures will 
be in place for the remainder of the fishing year, including a 45 
percent incidental catch allowance when Pacific mackerel are landed 
with other CPS. In other words, no more than 45 percent by weight of 
the CPS landed per trip may be Pacific mackerel, except that up to 1 mt 
of Pacific mackerel could be landed without landing any other CPS. Upon 
the fishery attaining the ACL/HG (40,514 mt), no vessels in CPS 
fisheries may retain Pacific mackerel. The purpose of the incidental 
set-aside and allowance of an incidental fishery is to allow for the 
restricted incidental landings of Pacific mackerel in other fisheries, 
particularly other CPS fisheries, when the directed fishery is closed 
to reduce potential discard of Pacific mackerel and allow for continued 
prosecution of other important CPS fisheries.
    The NMFS Southwest Regional Administrator will publish a notice in 
the Federal Register announcing the date of any closure to either 
directed or incidental fishing. Additionally, to ensure the regulated 
community is informed of any closure NMFS will also make announcements 
through other means available, including fax, email, and mail to 
fishermen, processors, and state fishery management agencies.
    On December 7, 2013, NMFS published a proposed rule for this action 
and solicited public comments (77 FR 73005). After considering public 
comments, NMFS is publishing this final rule, which includes the 
content of the proposed rule without change. NMFS received multiple 
comments from one commenter.

Comments and Responses

    Comment 1: The commenter stated that the proposed catch levels fail 
to account for ecological factors. Specifically, among the factors 
listed in the CPS FMP that are considered when setting annual 
specifications, that ``Information on ecological factors such as the 
status of the ecosystem, predator-prey interactions, or oceanographic 
conditions that may warrant additional ecosystem-based management 
considerations'' was not considered.
    Response: To the extent this comment is directed to the setting of 
the 2012/2013 Pacific mackerel ACL, HG, and other associated annual 
reference points, these harvest levels are based on the HG and ABC 
control rules established in the FMP and are based on the best 
available science. Furthermore, ecological factors such as the life-
cycles, distributions, and population dynamics of the various CPS 
stocks, as well as their role as forage were considered and evaluated 
in developing these control rules. Beyond the ecological factors used 
in the development of the control rules, other ecological information 
related to the annual management of CPS is presented to the Council 
through the annual CPS Stock Assessment and Fishery Evaluation which 
contains a chapter titled Ecosystem Considerations. In this chapter 
information on current climate and oceanographic conditions such as El 
Ni[ntilde]o and the Pacific Decadal Oscillation are presented, as well 
as ecosystem trends and indicators relevant to CPS such as sea surface 
temperature, ocean productivity and copepod abundance are summarized. 
Additionally, NMFS also considered ecological information in its review 
of the 2012/13 Pacific mackerel specifications through both the 
Environmental Assessment (EA) and the Essential Fish Habitat 
consultation. The EA analyzed the effects of the proposed action on the 
environment, which included an examination of available ecosystem and 
predator/prey modeling efforts. NMFS is unaware of any ecological 
factors that warranted additional ecosystem-based considerations in the 
2012/2013 Pacific mackerel specifications and none were presented by 
the commenter. In addition to the considerations mentioned above, OY 
considerations are built into the HG control rule which for the 2012/
2013 fishing season resulted in an HG 4,000 mt and 2,000 mt below the 
OFL and ABC respectively. Moreover, for the Council recommended and 
NMFS implemented an ACT that is

[[Page 18251]]

10,000 mt below the ACL/HG level, not for management uncertainty, but 
to prevent discard of Pacific mackerel in other CPS fisheries if the 
mackerel fishery is closed.
    Comment 2: The commenter stated that management of Pacific mackerel 
fails to include a reasonable overfished threshold.
    Response: This comment is directed at the overfished criteria for 
Pacific mackerel established in Amendment 8 to the CPS FMP. This 
rulemaking is not intended to revise or re-examine this criterion, and 
so the comment is beyond the scope of this rulemaking.
    Although reconsideration of the existing overfished criteria is 
beyond the scope of this rulemaking, NMFS notes that the commenter does 
not provide any explicit information as to why the current criteria for 
determining whether Pacific mackerel is overfished is not supported by 
the best available science. NMFS also points out that protection 
against the Pacific mackerel stock from reaching an overfished state 
through overfishing is an explicit part of the HG control rule through 
the use of the CUTOFF parameter. If the CUTOFF value is greater than 
zero (currently set at the 18,200 mt), then the allowable rate of 
harvest under the HG rule is automatically reduced as biomass declines. 
By the time biomass falls as low as CUTOFF, the harvest rate is reduced 
to zero. The combination of this CUTOFF and reduced harvest rates at 
low biomass levels means that a rebuilding program for Pacific mackerel 
is defined implicitly in the control and occurs even when the stock is 
not overfished.
    Comment 3: The same commenter also requested that alternative 
control rules for Pacific mackerel be considered that include a maximum 
catch threshold or MAXCAT as described in the CPS FMP and currently in 
place for Pacific sardine.
    Response: This comment is directed at part of the management 
framework beyond the scope of implementing the annual specifications 
for Pacific mackerel under the CPS FMP. This rulemaking is not intended 
to revise or re-examine that framework, and so the comment is beyond 
the scope of this rulemaking.
    Although consideration of additional harvest control mechanisms was 
not part of this rulemaking, NMFS will briefly address the subject of 
MAXCAT for Pacific mackerel. Although MAXCAT provisions can be useful 
control mechanisms, they have not been determined to be necessary or 
useful for managing Pacific mackerel under the CPS FMP. This is in part 
due to the assumption that the U.S. fishery appears to be limited by 
markets and resource availability to about 40,000 mt per year; landings 
have rarely exceeded 20,000 mt over the last 20 years and have averaged 
approximately 6,000 mt over the last 10 years and only 2,000 mt over 
the last three. If landings were to increase substantially, the need 
for a MAXCAT would likely be revisited sited. However, although there 
is not a MAXCAT for Pacific mackerel, during the years 2007-2010, the 
Council recommended, and NMFS implemented, HGs much lower (10,000 to 
40,000 mt lower) than those calculated from the HG control rule as a 
precautionary measure based on uncertainties surrounding the model 
estimating biomass.
    Comment 4: The same commenter also noted that NMFS completed the 
Environmental Assessment (EA) under the National Environmental Policy 
Act (NEPA) after the Council made its recommendation to NMFS on the 
proposed action and stated that the EA that was ultimately completed by 
NMFS did not include adequate consideration of a range of alternatives 
or the environmental impacts, including cumulative impacts of the 
action and subsequently requested that an Environment Impact Statement 
(EIS) be prepared.
    Response: NOAA prepared an EIS to analyze the management framework 
in the FMP for Pacific mackerel at the time the FMP was adopted; the 
adjustments to the management regime in Amendment 13 did not 
substantively change the harvest levels, and was analyzed in an EA. The 
EA for the 2012-2013 annual specifications demonstrates that the 
implementation of these annual catch levels for the Pacific mackerel 
fishery based on the HG and ABC control rules in the FMP 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 scope and range of alternatives, the six 
alternatives analyzed in the EA was a reasonable number and covered an 
appropriate scope based on the limited nature of this action, which is 
the application of set formulae in the FMP for the HG and ABC control 
rules to determine harvest levels of Pacific mackerel for one year. The 
six alternatives analyzed (including the proposed action and no action) 
were objectively evaluated in recognition of the purpose and need of 
this action and the framework process in place based on the specified 
control rules for setting catch levels for Pacific mackerel. The CPS 
FMP describes a specific framework process for annually setting 
required catch levels and reference points. Within this framework are 
specific control rules used for determining the annual OFL, ABC, ACL 
and HG/ACT. Although there is some flexibility built into this process 
in terms of determinations of scientific and management uncertainty, 
there is little discretion in the control rules for the OFL (level for 
determining overfishing) and the HG (level at which directed fishing is 
stopped), with the annual biomass estimate being the primary 
determinant in both these levels. Therefore, the alternatives in the EA 
covered a range of higher and lower ABC and ACL levels in the context 
of the OFL and HG levels and the environmental impacts of those 
alternatives. Additionally, although the commenter states that 
cumulative impacts were not analyzed, Chapter 6 of the EA does include 
an examination of cumulative impacts.

Classification

    The Administrator, Southwest Region, NMFS, determined that this 
action is necessary for the conservation and management of the Pacific 
mackerel 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.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have 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.

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

    Dated: March 20, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-06901 Filed 3-25-13; 8:45 am]
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