[Federal Register Volume 84, Number 126 (Monday, July 1, 2019)]
[Rules and Regulations]
[Pages 31222-31226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13960]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 190409351-9512-02]
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: Final rule.

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SUMMARY: NMFS issues this final rule to implement annual management 
measures and catch limits for the northern subpopulation of Pacific 
sardine for the fishing year from July 1, 2019, through June 30, 2020. 
This action prohibits directed commercial fishing for Pacific sardine 
off the U.S. Pacific Coast, except in the live bait or minor directed 
fisheries, or as part of exempted fishing permit activities, and 
establishes limits on the incidental harvest of Pacific sardine in 
other fisheries. This action is intended to conserve and manage the 
Pacific sardine stock off the U.S. West Coast.

DATES: Effective July 1, 2019, through June 30, 2020.

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.
    This final rule implements the annual catch levels and reference 
points for the 2019-2020 fishing year. The final rule

[[Page 31223]]

adopts, without changes, the catch levels and restrictions that NMFS 
proposed in the rule published on May 28, 2019 (84 FR 24459), including 
the OFL and ABC that take into consideration uncertainty surrounding 
the current estimate of biomass for Pacific sardine in the U.S. EEZ off 
the U.S. Pacific Coast. The proposed rule for this action included 
additional background on specifications and the details of how the 
Pacific Fishery Management Council (Council) derived its recommended 
specifications for Pacific sardine. Those details are not repeated 
here. For additional information, please refer to the proposed rule for 
this action.

                                     Table 1--Reference Points for the 2019-2020 Sardine Fishing Year in Metric Tons
                                                                          [mt]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Biomass estimate                                 OFL              ABC               HG              ACL              ACT
--------------------------------------------------------------------------------------------------------------------------------------------------------
27,547.............................................................           5,816            4,514                0            4,514            4,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    This final rule implements an OFL of 5,816 mt, an ABC and ACL of 
4,514 mt, and allows Pacific sardine catch only for live bait, in a 
minor directed fishery, as incidental catch in other fisheries, or 
under an exempted fishing permit (EFP). Additionally, this rule 
implements an annual catch target (ACT) of 4,000 mt, as well as 
restrictions on the incidental catch of Pacific sardine by other 
fisheries and a trip limit that could be imposed on directed fishing 
for sardine as live bait.
    For the first time, the estimated biomass for Pacific sardine has 
fallen below the 50,000-mt minimum stock size threshold (MSST) defined 
in the CPS FMP, which requires NMFS to initiate a process to declare 
the Pacific sardine stock overfished. Although NMFS has not officially 
determined the stock to be overfished, the Council made recommendations 
for the 2019-2020 Pacific sardine harvest specifications in 
anticipation of NMFS making such a determination in the near future. 
The CPS FMP previously required that when a CPS stock is overfished, 
live bait landings of that stock be restricted to only incidental catch 
up to 15 percent of total CPS on board. However, on June 10, 2019, NMFS 
approved Amendment 17 to the CPS FMP, which removed this pre-specified 
limit on fishing for live bait of a CPS stock that is overfished. 
Because Amendment 17 was still under Secretarial review at the April 
2019 Council meeting, the Council recommended management measures for 
the 2019-2020 sardine fishing year that matched 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) 
but also stated its desire to use the provision of Amendment 17 (i.e., 
allow directed live bait for overfished stocks with no predetermined 
limits) if it is approved. Because NMFS approved Amendment 17, directed 
live bait fishing for sardine will be permitted for the 2019-2020 
fishing year per the Council's recommendation.
    The final specifications include the following management measures 
and inseason accountability measures for commercial sardine harvest 
during the 2019-2020 fishing year:
    (1) Directed live bait fishing is allowed, subject to the 
accountability measure specified under number 2 below.
    (2) If landings by the live bait fishery reach 2,500 mt, NMFS will 
impose a 1-mt trip limit on retention of sardine in 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 apply to non-
CPS fisheries.
    (5) If the ACT of 4,000 mt is harvested by all fishing sectors 
combined, NMFS will impose a 1-mt trip limit on sardine caught as live 
bait, and a 1-mt trip limit on incidentally-caught sardine when caught 
while targeting other CPS.
    All sources of catch, including any 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 
counted against the ACL.
    The NMFS West Coast Regional Administrator will 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 will make announcements through other 
means, including emails to fishermen, processors, and state fishery 
management agencies.
    As explained in the proposed rule, the Quinault Indian Nation did 
not request a tribal set-aside for the 2019-2020 fishing year and 
therefore no set-aside was established and none is accounted for under 
the ACL.
    At the April 2019 meeting, the Council also voted in support of two 
EFP proposals that would exempt the permit holders from the prohibition 
on direct harvest of Pacific sardine. The ACT and ACL were formulated 
with the assumption that up to 405 mt of Pacific sardine would be 
harvested under these two EFPs.
    On May 28, 2019, NMFS published a proposed rule for this action and 
solicited public comments (84 FR 24459) through June 12, 2018. NMFS 
received two public comment letters--one from the CPS industry group 
California Wetfish Producers Association (CWPA), and one from the 
environmental advocacy organization Oceana. Both comment letters 
included multiple comments, including some comments that were beyond 
the scope of this rulemaking. After considering both public comments, 
no changes were made from the proposed rule. NMFS summarizes and 
responds to the comment letters below.

Comments and Responses

    Comment 1: The CWPA stated that it disagrees with the determination 
made for this rule by the Chief Counsel for Regulation of the 
Department of Commerce under the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601 et seq., which concluded that the 2019-2020 proposed harvest 
specifications and management measures would not have a significant 
economic impact on a substantial number of small entities. The 
commenter's primary objection to the determination is that the proposed 
action would significantly reduce profit for a substantial number of 
small entities, and specifically that the proposed 20-percent 
incidental landing allowance of Pacific sardine in other CPS directed 
fisheries would have a significant impact on the affected entities.
    Response: As stated in the proposed rule, the annual HG is the main 
tool used to manage the principal commercial sardine fishery and is the 
harvest level NMFS typically uses for

[[Page 31224]]

profitability analysis. For the purposes of profitability analysis, 
this final rule implements an HG of zero for the 2019-2020 Pacific 
sardine fishing season (July 1, 2019, through June 30, 2020). Likewise, 
the HG for the previous 3 fishing years was also set at zero, thereby 
prohibiting the primary commercial directed Pacific sardine fishery. 
Therefore, NMFS determined that this rule will not change the potential 
profitability compared to recent fishing years for the primary 
commercial fishery for Pacific sardine.
    In addition to the primary commercial fishery, NMFS recognized that 
this action also affects other fisheries for Pacific sardine such as 
live bait and minor directed fisheries, as well as other CPS fisheries 
that incidentally catch Pacific sardine. NMFS also determined that the 
proposed action will not significantly reduce the profitability of 
those fisheries compared to previous years. Specifically, the various 
directed and incidental catch allowances, such as the maximum allowed 
incidental catch rate of 20 percent, and other inseason management 
measures in this rule, are intended to not only help prevent 
overfishing but also ensure, to the extent practicable, maximum access 
to Pacific sardine throughout the fishing year for these other fishery 
sectors.
    Regarding the commenter's objection to setting the incidental 
landing allowance at 20 percent, NMFS notes that the FMP requires that 
the incidental catch allowance for an overfished CPS stock be set 
between 0 and 20 percent of the landed weight of the target stock. 
Therefore, the incidental catch allowances for other CPS fisheries 
cannot be higher than 20 percent. According to the CPS FMP, Pacific 
sardine is in an overfished condition when its biomass is below 50,000 
mt. The 2019 Pacific sardine stock assessment, which has been 
determined to be the best scientific information available for setting 
the 2019-2020 harvest specifications, shows that Pacific sardine 
biomass is below this level. Although NMFS has not officially 
determined the stock to be overfished, the Council recognized that NMFS 
would likely declare the stock overfished in the upcoming several 
months, and accordingly recommended an incidental allowance limit 
within this 0 to 20 percent range during the April meeting when the 
Council makes decisions about annual Pacific sardine specifications for 
the season that starts the following July. The only alternative to the 
20-percent incidental allowance would have been a lower incidental 
allowance. For this reason, implementing a 20-percent incidental 
allowance has the lowest possible economic impact on small entities 
permitted under the CPS FMP.
    Fishery information from recent years suggests that a 20-percent 
incidental landing limit will not unnecessarily constrain other CPS 
fisheries that encounter Pacific sardine. In the previous years when 
the commercial directed Pacific sardine fishery was closed, the maximum 
incidental harvest limit of Pacific sardine in other CPS fisheries was 
set initially at 40 percent, and then set to be reduced when the year's 
cumulative landings hit a certain level. For example, for the 2018-2019 
Pacific sardine fishing year, incidental harvest allocation for Pacific 
sardine in other CPS fisheries was set at 40 percent by weight until 
2,500 mt were caught, after which the limit would be reduced to 20 
percent. Similarly for the 2017-2018 fishing year, 40 percent 
incidental sardine harvest was allowed until 2,000 mt were caught, 
after which it would have been reduced to 20 percent. The 2017-2018 
fishing year also had a provision to further reduce incidental sardine 
harvest to 10 percent if total catch reached 5,000 mt. NMFS considered 
the reduction in the Pacific sardine incidental allowances for the 
2019-2020 fishing year and potential impact for CPS fisheries that 
incidentally catch this stock in the RFA determination for this action. 
During the 2017-2018 and 2018-2019 fishing years, while operating with 
a 40-percent incidental trip limit, the other CPS fisheries only 
incidentally caught 275 mt and 174 mt (as of April 1, 2019) of Pacific 
sardine, respectively. Over this same time period of the 2018-2019 
Pacific sardine fishing year, the commercial anchovy fishery off of 
California caught approximately 11,000 mt of anchovy, leading to one of 
the highest annual anchovy landing levels in California in recent 
history. These numbers demonstrate that the anchovy fishery did not 
need to regularly utilize a high percentage mix of Pacific sardine when 
harvesting anchovy.
    Although the commenter presents landings data that they state 
demonstrates that a lower incidental limit will constrain other CPS 
fisheries, based on the information above, it appears that when this 
data is put in the larger context of all landings per species, not just 
landings that had incidental catch, a 20 percent incidental may not be 
as restrictive as looks based on that data. For example, the commenter 
references data showing that four anchovy landings during the current 
2018-2019 Pacific sardine fishing season had incidental Pacific sardine 
in amounts higher than 20 percent. However, this is only 4 out of 406 
landings made by CPS fishermen targeting anchovy that had any 
incidental Pacific sardine landings greater than 20 percent. Similarly, 
for the Pacific mackerel fishery, only 1 landing in the 2017-2018 
fishing year, and none of the 177 Pacific mackerel landings in the 
2018-2019 fishing year had any Pacific sardine landings that exceeded 
than 20 percent. Therefore based on recent fishing practices, and 
recent utilization allowances for incidental Pacific sardine landings, 
NMFS determined that this action would not significantly affect 
profitability. NMFS recognizes that CPS-species mixing rates can change 
and fishing conditions are dynamic. To accommodate the dynamic nature 
of the CPS fisheries, NMFS has supported Council recommendations over 
the last few years that have allowed access to the applicable Pacific 
sardine ACLs by other CPS fisheries that have available quota, 
including the maximum 40-percent incidental harvest limit during the 
last 2 years and the maximum 20-percent incidental harvest limit this 
year.
    Comment 2: The CWPA stated that NMFS did not adequately consider 
the potential for significant environmental effects, including 
socioeconomic effects, from the proposed action, and should have 
conducted an environmental assessment (EA) under the National 
Environmental Policy Act.
    Response: NMFS considered whether this action triggered any 
extraordinary circumstances that may require analysis in an EA or 
environmental impact statement (EIS). NMFS did not find that any 
extraordinary circumstances were triggered. In addition, NMFS 
determined that there were no significant adverse economic impacts 
caused by this action. Additionally, NMFS determined that this rule 
does not demonstrate any potential for adverse impacts to the marine 
environment because the level of allowable fishing has been analyzed 
within the scope of impacts considered in the EIS prepared for the 
original FMP and the EA prepared for Amendment 13 to the FMP. Lastly, 
this rule prohibits the primary commercial fishery from harvesting 
Pacific sardine during the upcoming fishing year to protect the Pacific 
sardine resource, thereby negating the potential for any significant 
impacts on any target or non-target species or other marine resources.
    Comment 3: The CWPA comment letter stated that NMFS should 
disapprove this action because it is not based on the best scientific 
information available. The commenter's primary

[[Page 31225]]

rationale for this is that the Pacific sardine stock assessment is 
inaccurate and that Pacific sardine biomass is higher than the estimate 
from the most recent stock assessment.
    Response: NMFS determined that this action is based on the best 
scientific information available. This includes the 2019 Pacific 
sardine stock assessment, which the Council's SSC and NMFS reviewed and 
approved as the best scientific information available for setting 
Pacific sardine harvest specifications. NMFS did not identify 
inaccuracies in the 2019 Pacific sardine assessment. NMFS recognizes 
that during various reviews of the Pacific sardine assessment, the 
assessors and reviewers explored uncertainty in the data used in the 
model and the technical methods used to analyze the data (e.g. 
selectivity patterns for the survey data, use of different age and 
length composition data, recruitment). However, the uncertainty in the 
data or the technical methods was not substantial enough to invalidate 
the determination that the assessment represents the best scientific 
information available for setting Pacific sardine harvest 
specifications.
    NMFS is continually working to improve methods to estimate Pacific 
sardine biomass. In recent years, the commenter and other CPS industry 
members have stated that the Pacific sardine abundance they observe at 
sea is inconsistent with the results of the Pacific sardine assessment. 
To that end, the harvest specifications in this action were set to 
allow up to 405 mt of Pacific sardine to be harvested under two EFPs 
supporting industry-run research on Pacific sardine and other CPS. 
These EFPs will allow participants to assess CPS abundance in inshore 
areas that are too shallow for NOAA vessels to survey. NMFS is 
currently finalizing review and approval for this important research.
    Comment 4: Oceana supported the prohibition on primary directed 
fishing for Pacific sardine and the reduction in the incidental catch 
allowance of Pacific sardine in other CPS fisheries from 40 percent to 
20 percent. In addition to commenting on the proposed rule, Oceana's 
comment (and previous public comments by Oceana referenced in its 
letter) requested reconsideration of various aspects of Pacific sardine 
management that are not within the scope of this action. The 
recommendations in the comment letter include changing the start date 
of the fishery, revising the MSST value, and modifying various 
parameters in the OFL, ABC, and HG control rules. Oceana also commented 
on NMFS' timeline on declaring the Pacific sardine stock overfished and 
requested that NMFS declare that overfishing occurred on Pacific 
sardine in past years based on exploitation rates presented in the 2019 
Pacific sardine stock assessment, specifically that overfishing 
occurred in 2017 and 2018 based on the combined U.S. and Mexico 
exploitation rate, which are also actions outside the scope of this 
rule.
    Response: NMFS agrees with the commenter regarding the prohibition 
on primary directed fishing and the 20-percent incidental landing limit 
for Pacific sardine. Changes to the management framework of Pacific 
sardine and to the Pacific sardine harvest control rules are set in the 
CPS FMP and are beyond the scope of this rulemaking. NMFS notes that 
some of these changes, such as to the value for Distribution in the 
Pacific sardine harvest control rules and the MSST, have been 
previously reviewed during specific agenda items at Council meetings. 
However, NMFS will communicate other concerns to the PFMC for their 
consideration during related future management planning for the Pacific 
sardine stock.
    Regarding the change in stock status for Pacific sardine, NMFS is 
still in the process of making a formal declaration on a change to the 
stock status of Pacific sardine to overfished, however we still expect 
to submit a letter to the Council regarding a change in the status of 
the Pacific sardine stock in the coming months.
    As it relates to the comment that overfishing has occurred, it 
appears the commenter is confused with regard to how overfishing is 
determined for Pacific sardine, how ABC is calculated, and the 
differences between rate/fishing mortality based overfishing criteria 
and total catch based criteria. As stated in the preamble of the 
proposed rule and this final rule, Pacific sardine uses a total catch-
based method to determine whether overfishing is occurring. That is why 
the OFL is set annually in the harvest specifications. Pacific sardine 
harvest specifications do not set a fishing mortality level or rate as 
the indicator for whether overfishing will occur. Although NMFS' 
Magnuson-Stevens Act National Standard 1 guidelines at 50 CFR part 600 
Subpart D provide the option of defining ``overfishing status'' by 
using either a fishing mortality rate measured against a maximum 
fishing mortality threshold or catch in terms of numbers or weight of 
fish measured against an OFL, the CPS FMP defines overfishing for 
Pacific sardine by establishing an OFL annually. Overfishing would 
occur for Pacific sardine if total United States catch exceeded the 
OFL. As noted by the commenter this has never happened. Therefore 
overfishing has never occurred in this fishery.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the CPS FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effectiveness of these final harvest specifications for the 
2019-2020 Pacific sardine fishing season. In accordance with the FMP, 
this rule was recommended by the Council at its meeting in April 2019. 
The contents of this rule were based on the best available information 
on the population status of Pacific sardine at that time. Making these 
final specifications effective on July 1, the first day of the fishing 
season, is necessary for the conservation and management of the Pacific 
sardine resource because last year's restrictions on harvest are not 
effective after June 30. The FMP requires a prohibition on directed 
fishing for Pacific sardine for the 2019-2020 fishing year because the 
sardine biomass has dropped below the 150,000-mt threshold for a 
primary directed commercial fishery. The purpose of this threshold in 
the FMP, and for 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 
can contribute to rebuilding the stock. A delay in the effectiveness of 
this rule for a full 30 days would result in the re-opening the 
directed commercial fishery on July 1.
    Delaying the effective date of this rule beyond July 1 would be 
contrary to the public interest because it would jeopardize the 
sustainability of the Pacific sardine stock. Furthermore, most affected 
fishermen are aware that the Council recommended that directed 
commercial fishing be prohibited for the 2019-2020 fishing year and are 
fully prepared to comply with the prohibition.
    This final rule is exempt from the procedures of E.O. 12866 because 
this action is an annual fishery management specification under the 
Magnuson-Stevens Act.
    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

[[Page 31226]]

would not have a significant economic impact on a substantial number of 
small entities for purposes of the RFA. The factual basis for the 
certification was published in the proposed rule and is not repeated 
here. NMFS received a comment regarding this certification that is 
summarized above in the preamble of the final rule. This comment did 
not cause NMFS to change its determination regarding the certification. 
As a result, a regulatory flexibility analysis was not required and 
none was prepared.
    Pursuant to Executive Order 13175, this final 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.
    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: June 25, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2019-13960 Filed 6-28-19; 8:45 am]
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