[Federal Register Volume 81, Number 122 (Friday, June 24, 2016)]
[Rules and Regulations]
[Pages 41251-41253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14955]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 160411325-6535-02]
RIN 0648-XE568


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, 2016, through June 30, 2017. 
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 2016 biomass of 
Pacific sardine is below the biomass threshold specified 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 as incidental 
catch in other fisheries; the incidental harvest of Pacific sardine 
would 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 annual catch limit (ACL) for the 2016-2017 Pacific sardine 
fishing year is 8,000 mt. This rule is intended to conserve and manage 
the Pacific sardine stock off the U.S. West Coast.

DATES: Effective July 1, 2016, through June 30, 2017.

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

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., 
overfishing 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 2016-2017 fishing year. This final rule 
adopts, without changes, the catch levels and restrictions that NMFS 
proposed in the rule published on May 26, 2016 (81 FR 33454), 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 principal 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 2016-2017 management season this is 106,137 
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 directed commercial fishery 
quota, includes a CUTOFF parameter which has been set as a biomass 
level 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 2016-2017 
fishing season.
    At the April 2016 Council meeting, the Council's SSC approved, and 
the Council adopted, the ``Assessment of

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the Pacific Sardine Resource in 2016 for U.S.A. Management in 2016-
2017'', completed by NMFS Southwest Fisheries Science Center and the 
resulting Pacific sardine biomass estimate of 106,137 mt as the best 
available science for setting harvest specifications. Based on 
recommendations from its SSC and other advisory bodies, the Council 
recommended, and NMFS is implementing, an OFL of 23,085 mt, an ABC of 
19,236 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 2016-2017 Pacific sardine fishing year. As additional 
management measures, the Council also recommended, and NMFS is 
implementing, an ACL of 8,000 mt and specifying that the incidental 
catch of Pacific sardine in other CPS fisheries be managed with the 
following automatic inseason actions to reduce the potential for both 
targeting and discard of Pacific sardine:
     An incidental allowance of 40 percent Pacific sardine per 
landing by weight in non-treaty CPS fisheries until a total of 2,000 mt 
of Pacific sardine are landed.
     When 2,000 mt are landed, the incidental per-landing 
allowance would be reduced to 30 percent until a total of 5,000 mt of 
Pacific sardine have been landed.
     When 5,000 mt have been landed, the incidental per-landing 
allowance would be reduced to 10 percent for the remainder of the 2016-
2017 fishing year.
    Because Pacific sardine is known to comingle with other CPS stocks, 
these incidental allowances allow for the continued prosecution of 
these other important CPS fisheries and reduce the potential discard of 
sardine. Additionally, non-CPS fisheries are allowed to retain up to 2 
mt per landing of sardine harvested incidentally.
    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 also 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, 800 mt of the ACL are being set 
aside for tribal harvest use per a request from the Quinault Indian 
Nation.
    Detailed information on the fishery and the stock assessment are 
found in the report ``Assessment of the Pacific Sardine Resource in 
2016 for U.S.A. Management in 2016-2017'' (see FOR FURTHER INFORMATION 
CONTACT).

Comment and Response

    On May 26, 2016, NMFS published a proposed rule for this action and 
solicited public comments (81 FR 33454), with a public comment period 
that ended on June 10, 2016. NMFS received one comment letter--
explained below--during the comment period. After consideration of the 
public comment, no changes were made from the proposed rule. For 
further background information on this action please refer to the 
preamble of the proposed rule. NMFS summarizes and responds below to 
the comment letter below.
    Comment: The commenter expressed support for the prohibition on 
directed commercial sardine fishing, but is opposed to the proposed ACL 
level, and requested that NMFS instead set an ACL of no more than 1,000 
mt to be divided among the live bait and tribal sectors, and to 
accommodate limited bycatch. The commenter expressed an opinion that 
the proposed ACL of 8,000 mt fails to follow the harvest control rule 
because the FMP states that the harvest rate should be zero when the 
biomass drops below the CUTOFF.
    The comment also requested reconsideration of the sardine harvest 
control rule and other aspects of sardine management, including but not 
limited to the existing CUTOFF and Minimum Stock Size Threshold values. 
(These parameters, as well as other changes to the sardine harvest 
control rule and management mentioned by the commenter are beyond the 
scope of this rulemaking and will not be addressed below.)
    Response: First, NMFS notes that the stock assessment for the 2016-
2017 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. This year's biomass estimate 
used for the 2016-2017 specifications, along with the resulting OFL and 
ABC, was endorsed by the Council's SSC and NMFS as the best available 
science. Although this biomass estimate is still below the CUTOFF 
value, triggering the second year of the closure of the primary 
directed fishery, the estimate is slightly higher than last year's 
estimate.
    NMFS disagrees that the ACL implemented in this rule is not in line 
with the FMP or that it fails to prevent overfishing or will 
``contribute to the continued decline of the sardine population to an 
overfished condition''. The ACL should be viewed in the context of the 
OFL for the northern subpopulation of Pacific Sardine of 23,085 mt and 
an ABC of 19,236 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 8,000 mt is well below both the OFL and ABC, 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 overall harvest rate 
should be zero 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. The reference provided by the commenter to 
of a harvest rate of zero is specific to the primary directed fishery; 
as explained above, this action sets the directed harvest rate at zero. 
Although the commenter states that the harvest rate in this situation 
should be zero, the commenter nevertheless also seems to agree that the 
FMP allows incidental, live bait, or tribal harvest if the directed 
harvest is set at zero. The commenter specifically cites the CPS FMP 
language that allows for live bait harvest when the estimated biomass 
drops below the CUTOFF. Additionally, although the commenter disagrees 
with setting the ACL at 8,000 mt because it would allow a harvest rate 
above zero percent (which the commenter argues would violate the FMP), 
the commenter supports an ACL of 1,000 mt (implying that the commenter 
recognizes that the FMP allows a harvest rate above zero percent).

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act, the NMFS Assistant Administrator has

[[Page 41253]]

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 2016-2017 Pacific sardine fishing season. In 
accordance with the FMP, this rule was recommended by the Council at 
its meeting in April 2016, 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 2016-2017 fishing year 
because the sardine biomass is below the CUTOFF. The purpose of the 
CUTOFF in the FMP--and prohibiting 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, 2016, which was imposed under the 2015-2016 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 cause 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.
    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 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.
    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 17, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-14955 Filed 6-23-16; 8:45 am]
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