[Federal Register Volume 86, Number 100 (Wednesday, May 26, 2021)]
[Proposed Rules]
[Pages 28325-28328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11161]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 210521-0114; RTID 0648-XW035]


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Annual Specifications; 2021-2022 Annual Specifications and 
Management Measures for Pacific Sardine

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

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ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to implement annual harvest specifications and 
management measures for the northern subpopulation of Pacific sardine 
(hereafter, Pacific sardine), for the fishing year from July 1, 2021, 
through June 30, 2022. 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 per trip when caught with non-Coastal Pelagic 
Species stocks. The proposed annual catch limit for the 2021-2022 
Pacific sardine fishing year is 3,329 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 10, 2021.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2021-0045, by the following method:
     Electronic Submissions: Submit all public comments via the 
Federal e-Rulemaking Portal. Go to https://www.regulations.gov and 
enter NOAA-NMFS-2021-0045 in the Search box. Click on the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method 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).

FOR FURTHER INFORMATION CONTACT: Taylor Debevec, West Coast Region, 
NMFS, (562) 619-2052, [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 (MSA), 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 (Council), including 
the Council's CPS Management Team (Team), CPS Advisory Subpanel 
(Subpanel) and 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 measures. 
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 2021-2022 fishing year, as 
well as management measures to ensure that harvest does not exceed 
those limits and the 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 primary directed 
fishery is determined using the FMP-specified HG formula. This Pacific 
sardine HG control rule, the primary mechanism for setting the primary 
directed 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, 28,276 metric 
tons (mt), is below that value, the formula results in an HG of zero, 
and no Pacific sardine are available for the primary directed fishery 
during the 2021-2022 fishing season. This is the seventh consecutive 
year that the primary directed fishery is closed.
    During the 2019-2020 fishing year, the estimated biomass of Pacific 
sardine dropped below its 50,000-mt minimum stock size threshold 
(MSST), which triggered an overfished determination process. 
Accordingly, NMFS declared the stock overfished on June 26, 2019, and 
notified the Council on July 9, 2019. Since then, NMFS has worked with 
the Council to develop a rebuilding plan for Pacific sardine. At its 
September 2020 meeting, the Council recommended Amendment 18 to the CPS 
FMP, which would implement a rebuilding plan for Pacific sardine. NMFS 
published a Notification of Availability (86 FR 14401) for Amendment 18 
to the CPS FMP on March 16, 2021, with a comment period ending on May 
17, 2021.
    At the Council's April 2021 meeting, the Council's SSC reviewed the 
SWFSC 2021-2022 Pacific sardine stock assessment ``Catch-only 
projection of the Pacific sardine resource in 2021 for U.S. management 
in 2021-2022.'' The SWFSC completes annual assessments for Pacific 
sardine. The type of assessment alternates between benchmark 
assessments in one year and updated assessments the following two 
years. Both types of assessments are based largely on data collected 
from annual research cruises. However, due to the COVID-19 pandemic, a 
CPS research cruise was not conducted in 2020. As a result, the SWFSC 
produced a catch-only projection, based on the 2020 benchmark 
assessment, to provide a biomass estimate for harvest specifications 
during the 2021-2022 fishing year.
    Although the SSC acknowledged that the SWFSC appropriately 
conducted the stock assessment in accord with the Council's Terms of 
Reference for catch-only projections, the SSC concluded that the 
assessment was not appropriate for use in management this year. The 
SSC's primary concern was the discrepancy between the 2020 estimated 
fleet catch used in the 2020 benchmark assessment and the actual 
observed 2020 fleet catch used in the 2021 catch-only assessment. 
Specifically, the actual observed MexCal fleet catch (i.e., catch from 
Mexico, Southern California, and Central California) used for the 2021 
catch-only projection was significantly higher than the preliminary 
estimate of the MexCal fleet catch for the same time period used in the 
2020 benchmark assessment (33,070 mt vs 11,819 mt), resulting in a 
catch level for 2020 that was higher than the estimated biomass for 
2020. This high level of catch caused

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the stock assessment model to make unrealistic assumptions about the 
stock (e.g., levels of recruitment and fishing mortality rate) that are 
not expected for a catch-only assessment, as they varied too much from 
the 2020 benchmark assessment. For example, to reflect such a high 
catch amount, the model assumed a recruitment level that was nearly 
triple the previous assessment model estimate of recruitment.
    Because of this discrepancy, the SSC recommended using the 2020 
benchmark assessment to provide a biomass estimate for harvest 
specifications during the 2021-2022 fishing year, including the 2020-
2021 biomass estimate of 28,276 mt, and the OFL of 5,525 mt. The SSC 
acknowledged that defaulting to the 2020-2021 stock assessment does not 
resolve the inconsistencies between the 2020 benchmark assessment and 
the 2021 catch-only assessment; therefore, the SSC recommended 
designating the 2020 benchmark assessment as a Category 3 stock 
assessment, which infers a high amount of uncertainty (i.e., a data-
poor assessment) and functionally increases the buffer between the OFL 
and the ABC to account for the greater uncertainty and ensure 
overfishing is prevented.
    Based on the SSC's recommendation, the Council recommended, and 
NMFS is proposing for the 2021-2022 fishing year, an OFL of 5,525 mt, 
an ABC of 3,329 mt, an annual catch limit (ACL) of 3,329 mt, and a 
prohibition on commercial Pacific sardine catch, unless it is harvested 
as part of the live bait, tribal, or minor directed fisheries, as 
incidental catch in other fisheries, or as part of exempted fishing 
permit (EFP) activities. The Council also recommended an annual catch 
target (ACT) of 3,000 mt for the 2021-2022 fishing year. For 
comparison, the ABC/ACL and ACT adopted last year were 4,288 mt and 
4,000 mt, respectively. Therefore, although the recommended OFL for 
this year is the same as last year, the ABC/ACL level has been reduced 
to account for greater uncertainty in the OFL and an increased level of 
precaution.
    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 Recommended Management Measures 
below).

Recommended Management Measures

    The proposed 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 
the 50,000 mt MSST, 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 but above the MSST).
    The following are the proposed management measures and inseason 
accountability measures for the Pacific sardine 2021-2022 fishing year:
    (1) If landings in the live bait fishery reach 1,800 mt, of Pacific 
sardine, then a 1-mt per-trip limit of sardine would apply to the live 
bait fishery.
    (2) An incidental per-landing limit of 20-percent (by weight) 
Pacific sardine applies to other CPS primary directed fisheries (e.g., 
Pacific mackerel).
    (3) If the ACT of 3,000 mt is attained, then a 1-mt per-trip limit 
of Pacific sardine would apply to all CPS fisheries (i.e., 1) and 2) 
would no longer apply).
    (4) An incidental per-landing allowance of 2 mt of Pacific sardine 
would apply to non-CPS fisheries until the ACL is reached.
    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 would publish a 
notification 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 previous fishing years, the Quinault Indian Nation has 
requested, and NMFS has 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 2021-2022 fishing year, the 
Quinault Indian Nation has not requested a tribal set-aside, and 
therefore none is proposed.
    At the April 2021 meeting, the Council approved three EFP proposals 
requesting an exemption from the prohibition to directly harvest 
sardine during their discussion of sardine management measures. Those 
EFPs include a total amount of up to 830 mt of the ACL.
    This action must be effective by July 1, 2021; otherwise the 
fishery will open without any catch limits or restrictions in place. In 
order to ensure that these harvest specifications are effective in 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 provided 
an opportunity for public comment at its April 2021 meeting, as it does 
every year before adopting the recommended harvest specifications and 
management measures for the proceeding fishing year.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
the CPS FMP, other provisions of the MSA, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule is exempt from review under Executive Order 
12866.
    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.

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    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 2021-2022 annual specifications for Pacific sardine 
in the U.S. EEZ off the West 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. We 
do not collect or have access to information about affiliation between 
vessels or affiliation between vessels and processing entities in this 
fishery, or receipts in Alaska, Hawaii, or international fisheries, so 
it is possible that some impacted entities may exceed $11 million in 
ex-vessel revenue or another size-standard threshold. Based on 
available data, the average annual west coast revenue per vessel for 
all west coast vessels, including those described above potentially 
affected by this rule, was well below the threshold level of $11 
million as of 2020; 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 primary directed 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), the HG is 
zero. Since there is again no directed fishing for the 2021-2022 
fishing year, this proposed rule will not change the potential 
profitability for directly regulated entities compared to the previous 
six fishing years. Additionally, while the proposed 2021-2022 ACL is 
slightly 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 sardine can still access these other profitable fisheries 
while 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 Paper Reduction Act. There are no 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed action.

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

    Dated: May 21, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2021-11161 Filed 5-25-21; 8:45 am]
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