[Federal Register Volume 80, Number 124 (Monday, June 29, 2015)]
[Rules and Regulations]
[Pages 36933-36936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15838]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 150428405-5539-02]
RIN 0648-XD927


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 annual management 
measures and harvest specifications to establish the allowable catch 
levels (i.e. annual catch limit (ACL)/harvest guideline (HG)) for the 
northern subpopulation of Pacific sardine (hereafter, simply Pacific 
sardine), in the U.S. exclusive economic zone (EEZ) off the Pacific 
coast for the fishing season of July 1, 2015, through June 30, 2016. 
These specifications were determined according to the Coastal Pelagic 
Species (CPS) Fishery Management Plan (FMP). This action includes a 
prohibition on directed non-tribal Pacific sardine commercial fishing 
for Pacific sardine off the coasts of Washington, Oregon and 
California, which is required because the estimated 2015 biomass of 
Pacific sardine has dropped below the cutoff threshold in the HG 
control rule. Under this action Pacific sardine may still be harvested 
as part of either the live bait or tribal fishery or incidental to 
other fisheries; the incidental harvest of Pacific sardine will 
initially be limited to 40-percent by weight of all fish per trip when 
caught with other CPS or up to 2 metric tons (mt) when caught with non-
CPS. The ACL for 2015-2016 Pacific sardine fishing year is 7,000 mt. 
This rule is intended to conserve and manage the Pacific sardine stock 
off the U.S. West Coast.

DATES: Effective July 1, 2015 through June 30, 2016.

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

SUPPLEMENTARY INFORMATION: NMFS manages the Pacific sardine fishery in 
the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) 
in accordance with the CPS FMP. Annual specifications published in the 
Federal Register establish the allowable harvest levels (i.e. over 
fishing limit (OFL)/ACL/HG) for each Pacific sardine fishing year. The 
purpose of this final rule is to implement these annual catch reference 
points for the 2015-2016 fishing year. This final rule adopts, without 
changes, the reference points that NMFS proposed in the rule published 
on May 21, 2015 (80 FR 29296), 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 FMP and its implementing regulations require NMFS to set these 
annual catch levels for the Pacific sardine fishery based on the annual 
specification framework and control rules in the FMP. These control 
rules include the HG control rule, which in conjunction with the OFL 
and ABC rules in the FMP, are used to manage harvest levels for Pacific 
sardine, in accordance with the Magnuson-Stevens Fishery Conservation 
and Management Act, 16 U.S.C. 1801 et seq. According to the FMP, the 
quota for the principle commercial fishery is determined using the FMP-
specified HG formula. The HG formula 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 2015-2016 management season this is 96,688 mt.
    2. CUTOFF. This is the biomass level below which no HG is set. The 
FMP established this level at 150,000 mt.
    3. DISTRIBUTION. The average portion of the Pacific sardine biomass 
estimated in the EEZ off the Pacific coast. The FMP established this at 
87 percent.
    4. FRACTION. The temperature-varying harvest fraction is the 
percentage of the biomass above 150,000 mt that may be harvested.
    As described above, the Pacific sardine HG control rule, the 
primary mechanism for setting the annual

[[Page 36934]]

directed commercial fishery quota, includes the CUTOFF parameter which 
has been set as a biomass amount of 150,000 mt. This amount is 
subtracted from the annual biomass estimate before calculating the 
applicable HG for the fishing year. Therefore, because this year's 
biomass estimate is below that value, the formula results in an HG of 
zero and therefore no Pacific sardine are available for the commercial 
directed fishery during the 2015-2016 fishing year.
    At the April 2015 Pacific Fishery Management Council (Council) 
meeting, the Council adopted the ``Assessment of the Pacific Sardine 
Resource in 2015 for U.S.A. Management in 2015-2016'' completed by NMFS 
Southwest Fisheries Science Center and the resulting Pacific sardine 
biomass estimate of 96,688 mt. Based on recommendations from its 
Science and Statistical Committee (SSC) and other advisory bodies, the 
Council recommended and NMFS is implementing, an OFL of 13,227 mt, an 
available biological catch (ABC) of 12,074 mt, and a prohibition on 
sardine catch unless it is harvested as part of either the live bait or 
tribal fishery or incidental to other fisheries for the 2015-2016 
Pacific sardine fishing year. As additional conservation measures, the 
Council also recommended and NMFS is implementing an ACL of 7,000 mt 
and an annual catch target (ACT) of 4,000 mt. Incidental catch of 
Pacific sardine in other CPS fisheries will be managed under the ACT 
and be subject to the following management controls to reduce targeting 
and potential discard of Pacific sardine: (1) A 40 percent by weight 
incidental catch rate when Pacific sardine are landed with other CPS 
until a total of 1,500 mt of Pacific sardine are landed; (2) after 
1,500 mt have been caught, the allowance will be reduced to 30 percent; 
and (3) when 4000 mt is reached, the incidental per landing allowance 
will be reduced to 5 percent for the remainder of the 2015-2016 fishing 
year. Additionally, the Council adopted a 2 mt incidental per landing 
allowance in non-CPS fisheries. Because Pacific sardine is known to 
comingle with other CPS stocks, these incidental allowances were 
adopted to allow for the continued prosecution of these other important 
CPS fisheries and reduce the potential discard of sardine.
    The NMFS West Coast Regional Administrator will publish a notice in 
the Federal Register announcing the date of attainment of any of the 
incidental catch levels described above and subsequent changes to 
allowable incidental catch percentages. Additionally, to ensure that 
the regulated community is informed of any closure, NMFS will make 
announcements through other means available, including fax, email, and 
mail to fishermen, processors, and state fishery management agencies.
    As explained in the proposed rule, 1,000 mt of the ACL are being 
set aside for tribal harvest use as a result of a request by the 
Quinault Indian Nation.
    On May 21, 2015, NMFS published a proposed rule for this action and 
solicited public comments (80 FR 29296), with a public comment period 
that ended on June 5, 2015. NMFS received two comments--explained 
below--regarding the proposed Pacific sardine specifications. After 
consideration of the public comments, no changes were made from the 
proposed rule. For further background information on this action please 
refer to the preamble of the proposed rule.

Comments and Responses

    Comment 1: The commenter stated that the language in the proposed 
rule seems to minimize the economic impact of the sardine closure on 
the fleet and that sardine income has been a critical component of 
profitability. The commenter requested that NMFS address the economic 
impacts of the closure by re-opening the sardine fishery as soon as 
possible. The commenter further states that the immediate focus should 
be on confirming whether the surveys used to estimate biomass are 
accurate.
    Response: NMFS understands and agrees that this action is likely to 
have a negative economic impact on vessels that harvest Pacific 
sardine. NMFS did not intend to minimize the potential lost revenue to 
sardine fisherman caused by this rule compared to previous seasons. 
Although most vessels within the CPS fleet may be able to shift fishing 
effort to other species and supplement economic losses incurred by the 
sardine closure, we also understand that for certain individuals, 
including the commenter, the prohibition on directed commercial harvest 
may carry a heavier financial burden. The fact that many sardine 
fishermen also participate in other fisheries, which is expected to 
help offset lost revenue from sardine harvest, was not the deciding 
factor for NMFS in taking this action.
    The CPS FMP and its implementing regulations require NMFS to set 
the harvest specifications for the Pacific sardine fishery using the 
control rules set in the FMP. As stated above, the Pacific sardine HG 
control rule includes a CUTOFF of 150,000 mt. When the sardine biomass 
drops below this level, the FMP dictates that there will be no quota 
allocated to the primary commercial directed fishery. Allowing a 
directed commercial fishery as requested by the commenter would 
therefore violate the FMP. While allowing directed commercial fishing 
for the 2015-2016 fishing year could provide short-term economic 
benefits, the HG control rule is intended to help ensure long-term 
opportunities for harvesting sardine and relatively stable levels of 
harvest as opposed to a ``boom-and-bust'' type fishery. Although even 
in the absence of a commercial fishery, unfavorable environmental 
conditions could keep the sardine population at a low level, the 
purpose of a cutoff that is three times greater than the overfished 
level (50,000 mt) is akin to having a pre-determined, systemic 
rebuilding program that limits fishing as the stock declines. A cutoff 
both helps prevent overfishing and also stops fishing at an early stage 
in the stock's decline to help maintain a stable core population of 
sardines that can jump-start a new cycle of population growth if the 
environmental conditions become favorable.
    With regard to the commenter's question about whether the surveys 
used to estimate sardine biomass are sound, as explained above under 
SUPPLEMENTARY INFORMATION, this year's biomass estimate used for the 
2015-2016 specifications went through extensive review, and along with 
the resulting OFL and ABC, was endorsed by the Council's SSC and NMFS 
as the best available science. The stock assessment for the 2015-2016 
fishing year, as with each annual stock assessment, went through a 
multi-stage review process including being reviewed and discussed by 
the Council, and the Council's SSC, CPS management team, and CPS 
advisory subpanel to ensure that the best available science is utilized 
when calculating the biomass estimate. Every year, NOAA conducts a 
stock assessment for the northern subpopulation of Pacific Sardine that 
combines fisheries data with data collected off the West Coast by NOAA 
research ships surveying for sardine eggs, larvae and schools of mature 
fish, with models that incorporate sardine biology. As noted by the 
commenter, in past years the assessment has also incorporated 
scientific information from industry sponsored aerial surveys. However, 
this survey was not conducted in 2014 so data was not available for use 
in the 2015 survey. If in future years this work becomes available then 
this data source can be incorporated.
    Comment 2: One commenter expressed support for the prohibition on

[[Page 36935]]

directed commercial sardine fishing, but opposed the proposed ACL and 
ACT levels, and requested that NMFS instead set an ACL of no more than 
1,000 mt. The commenter expressed an opinion that the FMP does not 
allow any fishing when the biomass drops below the CUTOFF. The 
commenter further stated that the proposed ACL would allow too much 
harvest at a time when the sardine biomass is low and would further 
reduce the population to an overfished condition and does not provide 
an incentive for fisherman to avoid incidentally catching sardine.
    Response: NMFS disagrees that the ACL and ACT implemented in this 
rule are not in line with the FMP or that they fail to prevent 
overfishing and thereby will not protect the stock from becoming 
overfished. The ACL and ACT should be viewed in the context of the OFL 
for the northern subpopulation of Pacific Sardine of 13,227 mt and an 
ABC of 12,074 mt that takes into account scientific uncertainty 
surrounding the OFL. These reference limits were recommended by the 
Council based on the control rules in the FMP and were endorsed the 
Council's SSC. The commenter does not note disagreement with these 
levels. By definition, fishing could conceivably occur up to these 
levels and overfishing would not be occurring and therefore fishing 
would not be the cause of the stock moving towards an overfished state. 
An ACL of 7,000 mt is well below both the OFL and ABC and with the ACT 
of 4,000 mt under which incidental catch of sardine will be managed, 
along with the multiple safeguards in place to keep the catch under 
that level, the management measures implemented by this rule are more 
than adequate to prevent exceeding the OFL.
    In response to the commenter's opinion that no harvest should be 
allowed when the biomass drops below the 150,000-mt CUTOFF, NMFS notes 
that the FMP does not forbid incidental, live bait or tribal harvest in 
this situation. It also appears that although the commenter states that 
the harvest rate in this situation should be zero, the commenter 
nevertheless agrees that the FMP can allow these types of harvest. The 
commenter specifically cites the CPS FMP language that allows for live 
bait harvest when the estimated biomass drops below the CUTOFF. The 
commenter also recommends setting the ACL at 1,000 mt to accommodate 
live bait, tribal and incidental harvest of sardine. Additionally, 
although the commenter disagrees with setting the ACL at 7,000 mt 
because it would allow a harvest rate above zero percent (which the 
commenter argues would violate the FMP), the commenter also requests 
that an ACL of 1,000 mt be implemented (implying that the commenter 
recognizes that the FMP allows a harvest rate above zero percent). 
Detailed information on the fishery and the stock assessment are found 
in the report ``Assessment of the Pacific Sardine Resource in 2015 for 
U.S.A. Management in 2015-2016.''

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 final rule is consistent with the CPS FMP, other 
provisions of the Magnuson-Stevens Fishery Conservation and Management 
Act, and other applicable law.
    NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effectiveness for the establishment of these final harvest 
specifications for the 2015-2016 Pacific sardine fishing season. In 
accordance with the FMP, this rule was recommended by the Council at 
its meeting in April 2015, the contents of which were based on the best 
available new information on the population status of Pacific sardine 
that became available at that time. Making these final specifications 
effective on July 1 is necessary for the conservation and management of 
the Pacific sardine resource. The FMP requires a prohibition on 
directed fishing for Pacific sardine for the 2015-2016 fishing year 
because the sardine biomass has dropped below the CUTOFF. The purpose 
of the CUTOFF in the FMP--and disallowing directed fishing when the 
biomass drops below this level--is to protect the stock when biomass is 
low and provide a buffer of spawning stock that is protected from 
fishing and available for use in rebuilding the stock. A delay in the 
effectiveness of this rule for a full 30 days would not allow the 
implementation of this prohibition prior to the expiration of the 
closure of the directed fishery on July 1, 2015, which was imposed 
under the 2014-2015 annual specifications.
    Delaying the effective date of this rule beyond July 1 would be 
contrary to the public interest because reducing Pacific sardine 
biomass beyond the limits set out in this action could decrease the 
sustainability of the Pacific sardine, as well as causing future 
harvest limits to be even lower under the harvest control rule, thereby 
reducing future profits of the fishery.
    These final specifications are exempt from review under Executive 
Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared for 
this action. The FRFA incorporates the Initial Regulatory Flexibility 
Analysis (IRFA). No issues were raised by public comments in response 
to the IRFA prepared pursuant to the Regulatory Flexibility Act (RFA) 
for this action or on the economic impacts of the rule generally. 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. Additionally for copies of the FRFA, please 
see the FOR FURTHER INFORMATION CONTACT section above.
    The purpose of this action is to implement the 2015-2016 annual 
specifications for Pacific sardine in the U.S. EEZ off the Pacific 
coast. Annual specifications published in the Federal Register 
establish the allowable harvest levels (i.e. OFL/ACL/HG) for each 
Pacific sardine fishing year. This final rule adopts without changes 
the reference points that NMFS proposed in the rule published on May 
21, 2015 (80 FR 29296), 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 FMP and 
its implementing regulations require NMFS to set these annual catch 
levels for the Pacific sardine fishery based on the annual 
specification framework and control rules in the FMP.
    On June 12, 2014, the Small Business Administration (SBA) issued an 
interim final rule revising the small business size standards for 
several industries effective July 14, 2014 (79 FR 33467). The rule 
increased the size standard for Finfish Fishing from $19.0 to 20.5 
million, Shellfish Fishing from $5.0 to 5.5 million, and Other Marine 
Fishing from $7.0 to 7.5 million. 78 FR 33656, 33660, 33666 (See Table 
1). NMFS conducted its analysis for this action in light of the new 
size standards.
    The small entities that would be affected by the action are the 
vessels that fish for Pacific sardine as part of the West Coast CPS 
small purse seine fleet. As stated above, the U.S. Small Business 
Administration now defines small businesses engaged in finfish fishing 
as those vessels with annual revenues of $20.5 million or less. Under 
the former, lower standards, all entities subject to this action in 
previous years were considered small entities, and under the new 
standards they continue to be considered small. In 2014, there were 
approximately 81 vessels permitted to operate in the directed sardine 
fishery

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component of the CPS fishery off the U.S. West Coast; 58 vessels in the 
Federal CPS limited entry fishery off California (south of 39 N. lat.), 
and a combined 23 vessels in Oregon and Washington's state Pacific 
sardine fisheries. The average annual per vessel revenue in 2014 for 
the West Coast CPS finfish fleet was well below $20.5 million; 
therefore, all of these vessels therefore are considered small 
businesses under the RFA. Because each affected vessel is a small 
business, this 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. Therefore, this rule would not create 
disproportionate costs between small and large vessels/businesses.
    For the 2014-2015 fishing year, approximately 22,076 mt were 
available for harvest by the directed non-tribal commercial fishery 
(this includes 2,500 released from the tribal set aside). Approximately 
19,440 mt (approximately 3,378 mt in California and 16,023 mt in Oregon 
and Washington) of this allocation was harvested during the 2014-2015 
fishing year, for an estimated ex-vessel value of $8.8 million.
    The CPS FMP and its implementing regulations require NMFS to 
annually set an OFL, ABC, ACL and HG or ACT for the Pacific sardine 
fishery based on the specified harvest control rules in the FMP applied 
to the current stock biomass estimate for that year. The derived annual 
HG or ACT is the level typically used to manage the principle 
commercial sardine fishery and is the harvest level typically used by 
NMFS for profitability analysis each year. As stated above, the FMP 
dictates that when the estimated biomass drops below a certain level 
(150,000 mt) that there is no HG. Therefore, for purposes of 
profitability analysis, this action is implementing an HG of zero for 
the 2015-2016 Pacific sardine fishing year (July 1, 2014 through June 
30, 2015). As there is no directed fishing for the 2015-2016 fishing 
year, the rule will decrease small entities' potential profitability 
compared to last season.
    However, revenue derived from harvesting Pacific sardine is 
typically only one source of fishing revenue for a majority of the 
vessels that harvest Pacific sardine; as a result, the economic impact 
to the fleet from the action cannot be viewed in isolation. From year 
to year, depending on market conditions and availability of fish, most 
CPS/sardine vessels supplement their income by harvesting other 
species. Many vessels in California also harvest anchovy, mackerel, and 
in particular squid, making Pacific sardine only one component of a 
multi-species CPS fishery. For example, market squid have been readily 
available to the fishery in California over the last three years with 
total annual ex-vessel revenue averaging approximately $66 million over 
that time, compared to an annual average ex-vessel from sardine of $15 
million over that same time period. Additionally, some sardine vessels 
that operate off of Oregon and Washington also fish for salmon in 
Alaska or squid in California during times of the year when sardine are 
not available. The purpose of the incidental allowances under this 
action are to ensure the vessels impacted by this sardine action can 
still access these other profitable fisheries while still limiting the 
harvest of sardine.
    These vessels typically rely on multiple species for profitability 
because the total and regional abundance of sardine, like the other CPS 
stocks, is highly associated with ocean conditions and seasons of the 
year, and therefore are harvested at various times and areas 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, it has 
necessitated that the CPS fishery as a whole rely on a group of species 
for its annual revenues. Therefore, although there will a reduction in 
sardine revenue for the small entities affected by this action as 
compared to the previous season, it is difficult to predict exactly how 
this reduction will impact overall annual revenue for the fleet.
    No significant alternatives to this action exist that would 
accomplish the stated objectives of the applicable statutes. The zero 
directed harvest level is required by the FMP. NMFS implemented 
incidental catch allowances, which minimizes the economic impact of 
this rule on the affected small entities and ensures that the CPS fleet 
can continue fishing other CPS species where sardine incidental catch 
is possible.
    There are no reporting, record-keeping, or other compliance 
requirements required by this final rule. Additionally, no other 
Federal rules duplicate, overlap or conflict with this final 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: June 23, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2015-15838 Filed 6-24-15; 4:15 pm]
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