[Federal Register Volume 85, Number 129 (Monday, July 6, 2020)]
[Rules and Regulations]
[Pages 40135-40137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14442]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 200629-0174]
RTID 0648-XW023


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; 2020-2021 Annual Specifications and Management Measures for 
Pacific Sardine

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is implementing annual harvest specifications and 
management measures for the northern subpopulation of Pacific sardine 
(hereafter, Pacific sardine), for the fishing year from July 1, 2020, 
through June 30, 2021. This final rule will prohibit most directed 
commercial fishing for Pacific sardine off the coasts of Washington, 
Oregon, and California. Pacific sardine harvest will 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 will 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 per trip when caught with non-Coastal Pelagic Species stocks. The 
annual catch limit for the 2020-2021 Pacific sardine fishing year is 
4,288 metric tons. This final rule is intended to conserve and manage 
the Pacific sardine stock off the U.S. West Coast.

DATES: Effective July 1, 2020.

ADDRESSES: A copy of the report ``Assessment of Pacific Sardine 
Resource in 2020 for U.S.A. Management in 2020-2021'' is available at: 
https://www.pcouncil.org/documents/2020/03/agenda-item-d-3-attachment-1-stock-assessment-report-executive-summary-assessment-of-the-pacific-sardine-resource-in-2019-for-u-s-management-in-2019-20-full-document-electronic-only.pdf/, and may be obtained from the West Coast Region 
(see FOR FURTHER INFORMATION CONTACT).

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 West 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 2020-2021 fishing year. The final rule adopts, without 
changes, the catch levels and restrictions that NMFS proposed in the 
rule published on May 27, 2020 (85 FR 31733), including the OFL and ABC 
that take into consideration uncertainty surrounding OFL, including 
uncertainty in the current estimate of biomass for Pacific sardine in 
the U.S. EEZ off the U.S. West Coast. The proposed rule for this action 
included additional background on the specifications and 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 on this action, please refer 
to the proposed rule (85 FR 31733).

                               Table 1--Harvest Specifications for the 2020-2021 Sardine Fishing Year in Metric Tons (mt)
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                          Biomass estimate                                 OFL              ABC               HG              ACL              ACT
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28,276.............................................................           5,525            4,288                0            4,288            4,000
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    This final rule implements an OFL of 5,525 mt and an ABC and an 
annual catch limit (ACL) of 4,288 mt. These reference points are based 
on the control rules and management framework in the CPS FMP and on an 
estimate of Pacific sardine biomass of 28,276 mt from a stock 
assessment completed by NMFS Southwest Fishery Science Center. The 
Council and NMFS determined this stock assessment to be the best 
scientific information available for setting Pacific sardine harvest 
specifications for the 2020-2021 fishing year.
    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 (see below list of management 
and accountability measures). The annual harvest limits and management 
measures were developed in the context of the fact that NMFS declared 
the Pacific sardine stock overfished in July 2019. Since the biomass 
remains below its minimum stock size threshold (MSST) of 50,000 mt, the 
FMP requires that incidental catch of Pacific 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 (i.e., 150,000 mt threshold below which primary 
directed harvest is not allowed but above the MSST).
    The final specifications include the following management measures 
and inseason accountability measures for commercial sardine harvest 
during the 2020-2021 fishing year:
    (1) If landings in the live bait fishery reach 2,500 mt, then a 1-
mt per trip limit of sardine will apply to the live bait fishery.
    (2) A 20-percent incidental per landing by weight catch allowance 
will apply to other CPS primary directed fisheries (e.g., Pacific 
mackerel).
    (3) If the ACT of 4,000 mt is attained, then a 1-mt per trip limit 
of sardine will apply to all CPS fisheries (i.e., 1) and 2) would no 
longer apply).
    (4) An incidental per landing allowance of 2 mt of sardine in non-
CPS fisheries.
    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 
accounted for against the ACT and ACL.
    The NMFS West Coast Regional Administrator will publish a notice in 
the Federal Register to announce when

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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 available, including emails to 
fishermen, processors, and state fishery management agencies.
    At the April 2020 Council meeting, although formal review and 
approval was removed from the Council's agenda, they expressed support 
for three EFP proposals requesting an exemption from the prohibition to 
directly harvest sardine during their discussion of sardine management 
measures. This action accounts for NMFS' potential approval of up to 
1,145 mt of the ACL to be harvested under EFPs.

Comments and Responses

    On May 27, 2020, NMFS published a proposed rule for this action and 
solicited public comments (85 FR 31733) through June 11, 2020. NMFS 
received two public comments relevant to the proposed rule--one from 
the CPS industry group California Wetfish Producers Association (CWPA) 
and one from the environmental group Oceana. The CWPA supported the 
proposed rule in its entirety. After considering the public comments, 
no changes were made from the proposed rule. NMFS summarizes and 
responds to the comment letter from Oceana below.
    Comment 1: Oceana supported the prohibition on primary directed 
fishing for Pacific sardine, but requested that NMFS further reduce 
Pacific sardine mortality by setting a lower ACL (1,000 mt) and that 
this ACL be apportioned across the fisheries that incidentally catch 
Pacific sardine, the live bait and minor directed fisheries in some 
manner not described in the comment. Oceana also requested that 
directed fishing under EFPs not be allowed. Oceana states that a 1,000-
mt ACL and their additionally proposed management measures would 
``better protect the stock and dependent predators during this time of 
collapse.'' In addition to commenting on the proposed rule, Oceana also 
requested reconsideration of various aspects of Pacific sardine 
management and provided recommendations on changes to Pacific sardine 
management that are not within the scope of this action. These 
recommendations included changing the start date of the fishery, 
revising the MSST value, reinitiating the Endangered Species Act (ESA) 
consultation, and modifying various parameters in the OFL, ABC, and HG 
control rules, such as Emsy, CUTOFF and Distribution.
    Response: NMFS agrees with Oceana regarding the prohibition on 
primary directed fishing. 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 the 
Distribution parameter in the Pacific sardine harvest control rules and 
the MSST, have been previously reviewed during specific agenda items at 
Council meetings. For example, in 2015, a 3-day meeting was held that 
included agency and non-agency scientists to review the Distribution 
parameter. The results of this workshop were then presented to the 
Council and its advisory bodies, including the Science and Statistical 
Committee (SSC). The Council subsequently concluded that there was no 
superior data to inform this parameter. Additionally, NMFS notes that 
the Distribution parameter in the various Pacific sardine control rules 
is not a required element dictated by the Magnuson-Stevens Act or 
National Standard 1. Instead, it is an additional precautionary policy 
adopted and used by the Council to further reduce the harvest of 
Pacific sardine beyond what is required. However, NMFS will communicate 
other concerns to the Council for their consideration during related 
future management planning for the Pacific sardine stock. NMFS is aware 
of the scientific literature attached by Oceana, and will consider it 
as appropriate in future discussions on Pacific sardine management.
    Much of Oceana's commentary about ESA analysis address concerns 
beyond the scope of the proposed action, and also appear to conflate 
species listed under the ESA with species not listed, particularly 
marine predators. Relevant to this action, Oceana did not introduce any 
new scientific information that would require NMFS to reinitiate 
consultation under the ESA. NMFS notes that it determined that the 
2020-2021 harvest specifications fall well within the scope of impacts 
to listed species, including listed marine predators, considered under 
prior consultations for the fishery, and that fishing activities 
pursuant to this rule are not likely to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS or result in the destruction or adverse 
modification of critical habitat of any such species.
    As it relates to the comment that NMFS should set a lower ACL and 
further reduce catch in smaller scale fishery sectors, NMFS disagrees 
that setting a lower ACL is necessary. The ACL should be viewed in the 
context of the OFL for the northern subpopulation of Pacific sardine of 
5,525 mt and the ABC of 4,288 mt that takes into account scientific 
uncertainty surrounding the OFL. These reference points were 
recommended by the Council based on the control rules in the FMP and 
were endorsed by the Council's SSC as the best scientific information 
available for preventing overfishing. In addition, the management 
measures adopted by the Council, including an ACT that was set even 
lower than the ACL (4,000 mt), are more than adequate to ensure catch 
does not exceed the ACL/ABC and OFL and therefore prevent overfishing.
    The assertion in Oceana's comment that NMFS and the Council have 
set higher catch levels as Pacific sardine has declined is incorrect. 
Each year that the stock has declined the Council has recommended and 
NMFS has implemented catch levels commensurate with any decline in the 
stock. In fact, for this 2020-2021 fishing year the estimated biomass 
has actually increased from the previous fishing year, however the 
catch limit has been reduced, which is the opposite of increasing 
harvest.

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 
2020-2021 Pacific sardine fishing season. In accordance with the FMP, 
this rule was recommended by the Council at its meeting in April 2020. 
The contents of this rule are based on the best scientific information 
available on the population status of Pacific sardine. 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 2020-2021 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

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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 primary directed 
fishing be prohibited for the 2020-2021 fishing year and are fully 
prepared to comply with the prohibition.
    This final rule is exempt from the procedures of Executive Order 
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 would 
not have a significant economic impact on a substantial number of small 
entities for purposes of the Regulatory Flexibility Act. The factual 
basis for the certification was published in the proposed rule and is 
not repeated here. 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 30, 2020.
Chris Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2020-14442 Filed 6-30-20; 4:15 pm]
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