[Federal Register Volume 84, Number 102 (Tuesday, May 28, 2019)]
[Proposed Rules]
[Pages 24459-24461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11040]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 190409351-9452-01]
RIN 0648-XG972


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 annual catch limits and management 
measures for the northern subpopulation of Pacific sardine (hereafter, 
Pacific sardine), for the fishing year from July 1, 2019, through June 
30, 2020. The proposed action would prohibit most directed commercial 
fishing for Pacific sardine off the coasts of Washington, Oregon, and 
California. Pacific sardine harvest would be allowed only in the live 
bait fishery, minor directed fisheries, as incidental catch in other 
fisheries, or as authorized under exempted fishing permits. The 
incidental harvest of Pacific sardine would be limited to 20 percent by 
weight of all fish per trip when caught with other stocks managed under 
the Coastal Pelagic Species Fishery Management Plan or up to 2 metric 
tons when caught with non-Coastal Pelagic Species stocks. The proposed 
annual catch limit for the 2019-2020 Pacific sardine fishing year is 
4,514 metric tons. This proposed rule is intended to conserve and 
manage the Pacific sardine stock off the U.S. West Coast.

DATES: Comments must be received by June 12, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0034, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0034, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Lynn Massey, Sustainable 
Fisheries Division, NMFS West Coast Region, 501 W Ocean Blvd., Ste. 
4200, Long Beach, CA 90802-4250; Attn: Lynn Massey.
    Instructions: 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 by NMFS. 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.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    A copy of the report ``Assessment of Pacific Sardine Resource in 
2019 for U.S.A. Management in 2019-2020'' is available at https://www.pcouncil.org/wp-content/uploads/2019/04/E3_Supp_Att1_REVISED_Sardine_Assessment_Update_Review_Draft-full-version-electronic-only-DO-NOT-PRINT.pdf, and may be obtained from the 
West Coast Region (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Lynn Massey, West Coast Region, NMFS, 
(562) 436-2462, [email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the Pacific sardine fishery in 
the U.S. exclusive economic zone (EEZ) off the Pacific coast 
(California, Oregon, and Washington) in accordance with the Coastal 
Pelagic Species (CPS) Fishery Management Plan (FMP). The FMP and its 
implementing regulations require NMFS to set 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 harvest 
guideline (HG) control rule, which, in conjunction with the overfishing 
limit (OFL) and acceptable biological catch (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 (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq.
    During public meetings each year, the NMFS Southwest Fisheries 
Science Center (SWFSC) presents the estimated biomass for Pacific 
sardine to the Pacific Fishery Management Council's (Council) CPS 
Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) 
and the Council's Scientific and Statistical Committee (SSC). The Team, 
Subpanel and SSC review the biomass and the status of the fishery, and 
recommend applicable catch limits and additional management measure. 
Following Council review and public comment, the Council adopts a 
biomass estimate and recommends catch limits and any in-season 
accountability measures to NMFS. NMFS publishes annual specifications 
in the Federal Register to establish these catch limits and management 
measures for each Pacific sardine fishing year. This rule proposes the 
Council's recommended catch limits for the 2019-2020 fishing year, as 
well as management measures to ensure that harvest does not exceed 
those limits, and adoption of an OFL and ABC that take into 
consideration uncertainty surrounding the current estimate of biomass 
for Pacific sardine.

Recommended Catch Limits

    According to the FMP, the catch limit 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 2019-2020 management season, this is 27,547 metric 
tons (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

[[Page 24460]]

estimated in the EEZ off the Pacific coast is 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 
catch limit, 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. Since this year's biomass estimate is below that value, the 
formula results in an HG of zero, and no Pacific sardine are available 
for the primary directed commercial fishery during the 2019-2020 
fishing season. This would be the fifth consecutive year that the 
primary directed commercial fishery is closed.
    At the April 2019 Council meeting, the Council's SSC approved, and 
the Council adopted, the SWFSC's ``Assessment of the Pacific Sardine 
Resource in 2019 for U.S. Management in 2019-2020'', available here: 
https://www.pcouncil.org/wp-content/uploads/2019/04/E3_Supp_Att1_REVISED_Sardine_Assessment_Update_Review_Draft-full-version-electronic-only-DO-NOT-PRINT.pdf. The resulting Pacific sardine 
biomass estimate of 27,547 mt was adopted as the best scientific 
information available for setting harvest specifications. Based on 
recommendations from its SSC and other advisory bodies, as well as the 
OFL and ABC control rules in the CPS FMP, the Council recommended, and 
NMFS is proposing, an OFL of 5,816 mt, an ABC of 4,514 mt, an annual 
catch limit (ACL) of 4,514 mt, and a prohibition on commercial Pacific 
sardine catch, unless it is harvested as part of the live bait, tribal, 
or minor directed fisheries, or as incidental catch in other fisheries. 
The Council also recommended an annual catch target (ACT) of 4,000 mt 
for the 2019-2020 fishing year. In conjunction with setting an ACT, the 
Council also recommended inseason and other management measures to 
ensure harvest opportunity under the ACT throughout the year (see 
below).

Recommended Management Measures

    The proposed annual harvest limits and management measures were 
developed in the context of information, which has been communicated to 
the Council, that the sardine biomass has also declined below its 
minimum stock size threshold (MSST) of 50,000 mt defined in the CPS 
FMP. NMFS is in the process of reviewing the 2019 stock assessment (see 
ADDRESSES), and depending on the outcome of that review, might 
officially change the status of the Pacific sardine stock to 
overfished. Because the Council accepted that the biomass is below the 
50,000 mt MSST, the FMP requires that incidental catch of sardine in 
other CPS fisheries be limited to an incidental allowance of no more 
than 20 percent by weight (instead of a maximum of 40 percent allowed 
when below the CUTOFF but above the MSST) and that incidental catch of 
live bait be limited to no more than 15 percent by weight.
    The Secretary is currently reviewing Amendment 17 to the CPS FMP, 
as recommended by the Council. Amendment 17, if approved, would remove 
the FMP's pre-specified 15 percent incidental landing limit that 
becomes effective for live bait if a stock managed under the CPS FMP 
becomes overfished. Therefore, Amendment 17 would provide flexibility 
to allow directed live bait fishing for Pacific sardine when Pacific 
sardine is overfished, provided that any such fishing is consistent 
with regulations and any rebuilding plan for the stock. NMFS published 
a Notice of Availability on Amendment 17 in the Federal Register on 
March 22, 2019 (84 FR 10768), and is soliciting public comments through 
May 21, 2019. Because Amendment 17 is still under Secretarial review, 
NMFS advised the Council to recommend management measures for the 2019-
2020 fishing year that match the status quo FMP provisions (i.e., no 
directed live bait for overfished stocks and 15 percent maximum 
incidental limit on live bait for overfished stocks) and if desired, 
state its intent to use the provision of Amendment 17 (i.e., allow 
directed live bait for overfished stocks with no predetermined limits) 
if it is approved. Therefore, the Council's recommended management 
measure on live bait (see #1 below) differs depending on NMFS' 
forthcoming determination on Amendment 17. The statutory deadline for 
NMFS to make a decision to approve, disapprove, or partially approve 
Amendment 17 is June 20, 2019, however NMFS expects to make the 
decision prior to issuing the final rule for the 2019-20120 Pacific 
sardine harvest specifications.
    The following are the proposed management measures and inseason 
accountability measures for the Pacific sardine 2019-2020 fishing year:
    (1) If the Secretary of Commerce approves Amendment 17, then 
directed live bait fishing for sardine will be permitted and will be 
subject to accountability measures specified under number 2 below. If 
Amendment 17 is not approved, then live bait landings will be limited 
to the 15-percent maximum allowed by the current CPS FMP and will still 
be subject to accountability measures specified under number 2 below;
    (2) If landings in the live bait fishery reach 2,500 mt, NMFS will 
institute a 1-mt per trip limit of sardine to the live bait fishery;
    (3) A 20-percent incidental per landing by weight catch allowance 
will be applied to other CPS primary directed commercial fisheries 
(e.g., Pacific mackerel);
    (4) A 2-mt per trip incidental catch allowance will be applied to 
non-CPS fisheries; and
    (5) If the ACT of 4,000 mt is attained, NMFS will institute a 1-mt 
per trip limit of sardine to live bait, and a 1-mt per trip limit of 
incidentally-caught sardine when caught with other CPS.
    All sources of catch including any exempted fishing permit (EFP) 
set-asides, the live bait fishery, and other minimal sources of 
harvest, such as incidental catch in CPS and non-CPS fisheries, and 
minor directed fishing, will be accounted for against the ACT.
    The NMFS West Coast Regional Administrator would publish a notice 
in the Federal Register to announce when catch reaches the incidental 
limits as well as any changes to allowable incidental catch 
percentages. Additionally, to ensure that the regulated community is 
informed of any closure, NMFS would make announcements through other 
means available, including emails to fishermen, processors, and state 
fishery management agencies.
    In each of the previous 7 fishing years, the Quinault Indian Nation 
requested, and NMFS approved, a set-aside for the exclusive right to 
harvest Pacific sardine in the Quinault Usual and Accustomed Fishing 
Area off the coast of Washington State, pursuant to the 1856 Treaty of 
Olympia (Treaty with the Quinault). For the 2019-2020 fishing year, the 
Quinault Indian Nation has not requested a tribal set-aside and 
therefore none is proposed.
    At the April 2019 meeting, the Council also voted in support of two 
EFP proposals requesting an exemption from the prohibition to directly 
harvest Pacific sardine. This action accounts for NMFS approval of up 
to 405 mt of the ACL to be harvested under EFPs.
    This action must be effective by July 1, 2019. Otherwise the 
fishery will open without any catch limits or restrictions in place. In 
order to ensure that these harvest specifications are effective in

[[Page 24461]]

time for the start of the July 1 fishing year, NMFS will solicit public 
comments on this proposed rule for 15 days rather than the standard 30 
days. A 15-day comment period has been the practice since the 2015-2016 
fishing year when the primary directed fishery for sardine was first 
closed. NMFS received the recommendations from the Council that form 
the basis for this rule only last month. The subject of this proposed 
rule--the establishment of the reference points--is considered a 
routine action, because they are calculated annually based on the 
framework control rules in the FMP. Additionally, the Council provides 
an opportunity for public comment each year at its April meeting before 
adopting the recommended harvest specifications and management measures 
for the proceeding fishing year.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the CPS FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law, subject to further consideration after 
public comment.
    This proposed rule is exempt from the procedures of E.O. 12866 
because this action contains no implementing regulations.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with the tribal 
representative on the Council who has agreed with the provisions that 
apply to tribal vessels.
    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, 
for the following reasons:
    For Regulatory Flexibility Act (RFA) purposes only, NMFS has 
established a small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing (see 50 
CFR 200.2). A business primarily engaged in commercial fishing (NAICS 
code 11411) is classified as a small business if it is independently 
owned and operated, is not dominant in its field of operation 
(including its affiliates), and has combined annual receipts not in 
excess of $11 million for all its affiliated operations worldwide.
    The purpose of this proposed rule is to conserve the Pacific 
sardine stock by preventing overfishing, while still allowing harvest 
opportunity among differing fishery sectors. This will be accomplished 
by implementing the 2019-2020 annual specifications for Pacific sardine 
in the U.S. EEZ off the Pacific coast. The small entities that would be 
affected by the proposed action are the vessels that would be expected 
to harvest Pacific sardine as part of the West Coast CPS small purse 
seine fleet if the fishery were open, as well as fishermen targeting 
other CPS, sardine for live bait, or sardine in the minor directed 
fishery. In 2014, the last year that a directed fishery for Pacific 
sardine was allowed, there were approximately 81 vessels permitted to 
operate in the directed sardine fishery 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[deg] 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 those vessels was well 
below the threshold level of $11 million; therefore, all of these 
vessels are considered small businesses under the RFA. Because each 
affected vessel is a small business, this proposed rule is considered 
to equally affect all of these small entities in the same manner. 
Therefore, this rule would not create disproportionate costs between 
small and large vessels/businesses.
    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 is the level typically used to manage the principal commercial 
sardine fishery and is the harvest level NMFS typically uses for 
profitability analysis each year. As stated above, the CPS FMP dictates 
that when the estimated biomass drops below a certain level (150,000 
mt) there is no HG. Therefore, for the purposes of profitability 
analysis, this action is essentially proposing an HG of zero for the 
2019-2020 Pacific sardine fishing season (July 1, 2019, through June 
30, 2020). The estimated biomass used for management during the 
preceding fishing year (2018-2019) was also below 150,000 mt. 
Therefore, NMFS did not implement an HG for the 2018-2019 fishing year, 
thereby prohibiting the primary commercial directed Pacific sardine 
fishery. Since there is again no directed fishing for the 2019-2020 
fishing year, this proposed rule will not change the potential 
profitability compared to the previous fishing year. Additionally, 
while the proposed 2019-2020 ACL is lower compared to previous years, 
it is still expected to account for the various fishery sector needs 
(i.e., live bait, incidental catch in other CPS fisheries, and minor 
directed fisheries).
    The revenue derived from harvesting Pacific sardine is typically 
only one of the sources of fishing revenue for the commercial vessels 
that participate in this fishery. As a result, the economic impact to 
the fleet from the proposed 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. 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 catch limits proposed in this 
action are to ensure the vessels impacted by a prohibition on directly 
harvesting Pacific sardine can still access these other profitable 
fisheries while still minimizing Pacific sardine harvest.
    CPS vessels typically rely on multiple species for profitability 
because abundance of Pacific sardine, like the other CPS stocks, is 
highly associated with ocean conditions and seasonality. Variability in 
ocean conditions and season results in variability in the timing and 
location of CPS harvest 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 has relied on a group 
of species for its annual revenues.
    Therefore the proposed action, if adopted, will not have a 
significant economic impact on a substantial number of small entities. 
As a result, an Initial Regulatory Flexibility Analysis is not 
required, and none has been prepared.
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

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

    Dated: May 22, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2019-11040 Filed 5-24-19; 8:45 am]
 BILLING CODE 3510-22-P