[Federal Register Volume 86, Number 129 (Friday, July 9, 2021)]
[Rules and Regulations]
[Pages 36237-36239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14643]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No: 210702-0144; 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.

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, which runs from 
July 1, 2021, through June 30, 2022. 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 2021-
2022 Pacific sardine fishing year is 3,329 metric tons. This final rule 
is intended to conserve and manage the Pacific sardine stock off the 
U.S. West Coast.

DATES: Effective July 6, 2021.

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.
    This final rule implements the annual catch levels, reference 
points, and management measures for the 2021-2022 fishing year. The 
final rule adopts, without changes, the catch levels and restrictions 
that NMFS proposed in the rule published on May 26, 2021. 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 (86 FR 
28325).
    This rule implements an OFL of 5,525 metric tons (mt) and an ABC/
annual catch limit (ACL) of 3,329 mt, based on CPS FMP control rules 
and a biomass estimate of Pacific sardine of 28,276 mt. This biomass 
estimate is from the 2020 benchmark stock assessment and was 
recommended for use this year by the Council's Scientific and 
Statistical Committee after identifying significant uncertainties in 
the 2021 catch-only projection. Because the estimated biomass is less 
than the value of the CUTOFF parameter in the CPS FMP (150,000 mt), the 
harvest guideline is set to 0 mt, meaning there is no primary directed 
fishery for Pacific sardine. This is the seventh consecutive year the 
primary directed fishery has been closed. Because the estimated biomass 
is below the minimum stock size threshold (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. Although these management measures, triggered by the FMP, are 
expected to keep catch far below the ACL as they have done in recent 
history, this rule also implements an annual catch target (ACT) of 
3,000 mt and implements management measures to ensure harvest 
opportunity throughout the year.
    A summary of the 2021-2022 fishing year specifications can be found 
in Table 1, and management measures in the list below.

[[Page 36238]]



              Table 1--Harvest Specifications for the 2021-2022 Sardine Fishing Year in Metric Tons
                                                      [mt]
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 Biomass estimate         OFL                ABC                 HG                ACL                ACT
----------------------------------------------------------------------------------------------------------------
         28,276              5,525              3,329                  0              3,329              3,000
----------------------------------------------------------------------------------------------------------------

    Measures for commercial sardine harvest during the 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 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 and ACL. 
At the April 2021 Council meeting, the Council approved 830 mt of the 
ACL for three EFP proposals to support stock assessments for Pacific 
sardine. Any Pacific sardine harvested between July 1, 2021, and the 
effective date of the final rule will count toward the 2021-2022 ACT.
    The NMFS West Coast Regional Administrator will 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 will make announcements through other 
means available, including emails to fishermen, processors, and state 
fishery management agencies.

Comments and Responses

    On May 26, 2021, NMFS published a proposed rule for this action and 
solicited public comments through June 10, 2021 (86 FR 28325). NMFS 
received one public comment letter containing multiple comments from 
the environmental group Oceana. After considering the public comment, 
NMFS made no changes from the proposed rule. NMFS summarizes and 
responds to the comment letter from Oceana below.
    Comment: Oceana states that the proposed harvest specifications are 
not based on the best available science, fail to prevent overfishing, 
and will impede rebuilding. Oceana requests that NMFS revise the 
proposed specifications to reduce catch limits. Specifically, Oceana 
suggests that NMFS use a different EMSY value to calculate 
the OFL, ABC, and ACL, which would result in an OFL of 1,230 mt, an ABC 
of 741 mt, and an ACL lower than 741 mt. Oceana also suggests that NMFS 
reduce catch by limiting live bait harvest of sardine, denying EFP 
applications that propose to land or sell sardine or limiting their 
catch to 10 mt, and limiting incidental catch of sardine in other 
directed CPS fisheries to no more than 10 percent of landings.
    Response: NMFS has determined this action is based on the best 
available science, prevents overfishing, and will not impede 
rebuilding. NMFS disagrees with Oceana's suggestion that setting a 
lower ACL, specifically an ACL lower than 741 mt, is necessary to 
prevent overfishing. The reference points being implemented through 
this action were recommended by the Council based on the control rules 
in the FMP and were endorsed by the Council's Scientific and 
Statistical Committee (SSC) as the best scientific information 
available for setting the 2021-2022 harvest specifications for Pacific 
sardine. In addition, the management measures adopted by the Council, 
including an ACT that was set even lower than the ACL (3,000 mt), are 
more than adequate to ensure catch does not exceed the ACL/ABC and OFL, 
and therefore add an additional measure for preventing overfishing. 
Furthermore, although the SSC did not endorse the 2021 catch-only 
projection due to uncertainty in the model (including the level of 
catch by Mexico), more precaution was built into the Council's ABC 
recommendation to account for this uncertainty and to ensure 
overfishing is prevented. The reference points implemented through this 
action should also be viewed in the context of the non-discretionary 
harvest restrictions already in place, pursuant to the CPS FMP, which 
generally restrict the fishery from catching the full ACL. These non-
discretionary restrictions include the continued closure of the primary 
directed fishery (i.e., the largest fishery that takes the majority of 
Pacific sardine catch) and restrictions on incidental harvest of 
Pacific sardine in other CPS fisheries (which are currently less than 
half of typical incidental limits).
    NMFS also finds it unnecessary to further limit the landings of 
sardine by implementing any of the additional measures recommended by 
Oceana--i.e., limiting live bait harvest, denying EFP applications or 
limiting their allowable catch, and reducing the percentage of landings 
allowed in other directed CPS fisheries. The Council considered the 
overfished status of Pacific sardine, as well as the uncertainty around 
the 2021 catch update due to the inability to collect survey data 
during the COVID-19 pandemic, and incorporated precautionary measures 
in their recommendations to NMFS to account for those factors. Those 
precautionary measures included: (1) Deeming the assessment Tier 3 
(high uncertainty); (2) using a P* value of 0.4 (high uncertainty); (3) 
reducing the ACT from the ACL; (4) reducing the EFP allowance from the 
requested amount; (5) limiting incidental sardine landings in CPS 
fisheries to 20 percent; and (6) incorporating accountability measures. 
These accountability measures include: (1) Limiting live bait landings 
to 1 mt per landing once 1,800 mt of sardine is attained; (2) imposing 
a per-trip limit of 1 mt of sardine in all CPS fisheries once the ACT 
is attained; and (3) implementing an incidental per-landing allowance 
of 2 mt in non-CPS fisheries until the ACL is reached.
    Finally, although changes to how EMSY is calculated is 
beyond the scope of this rulemaking, NMFS would nevertheless like to 
respond to Oceana's suggestion in this regard. NMFS is aware of the 
2019 scientific publication referenced by Oceana in their comment 
letter and of ongoing Council discussions related to EMSY. 
NMFS is committed to participating in discussions about new science and 
whether that science justifies a change to how EMSY is 
calculated for management purposes. Regarding the 2019 paper mentioned 
by Oceana that was authored by researchers at the SWFSC, NMFS notes 
that research related to the appropriate temperature

[[Page 36239]]

index to inform EMSY is ongoing. NMFS has not yet determined 
whether, based on that paper, a change in how EMSY is 
calculated is necessary for management purposes. NMFS will continue to 
examine whether this new publication warrants a change in management; 
however, at this time NMFS has determined that the reference points set 
through this action are based on the best scientific information 
available. Regarding recent Council discussions related to 
EMSY, NMFS notes that the Council's SSC--the scientific 
advisory body that is responsible for recommending changes to 
EMSY--has the ability to recommend changes to 
EMSY at any time, and it has not determined that a change is 
necessary at this time. The Council's SSC previously made such a 
recommendation in 2014 when it recommended that NMFS switch from using 
the 3-year average of Scripps Institution of Oceanography (SIO) sea 
surface temperature measurements to using the 3-year average of CalCOFI 
sea surface temperature measurements to inform EMSY. In 2014 
the SSC also recommended an interim measure of a static EMSY 
of 18 percent until that change, from SIO to CalCOFI, could be adopted 
after being properly analyzed.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this final rule is consistent with 
the CPS FMP, other provisions of the MSA, and other applicable law.
    The need to implement these measures in a timely manner to ensure 
they are in place as soon as possible after the start of the fishing 
season, July 1, 2021, constitutes good cause under authority contained 
in 5 U.S.C. 553(d)(3), to establish an effective date less than 30 days 
after date of publication. In accordance with the FMP, this rule was 
recommended by the Council at its meeting in April 2021, 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 as soon as possible 
after July 1, the first day of the fishing year, 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 primary directed fishing for Pacific 
sardine for the 2021-2022 fishing year because the sardine biomass has 
dropped below the CUTOFF. The purpose of the CUTOFF in the FMP, and for 
prohibiting a primary directed fishery 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 of a full 30 days in the 
date of effectiveness for this rule would result in the re-opening of 
the primary directed commercial fishery on July 1.
    Delaying the effective date of this rule much 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 
commercial fishing be prohibited for the 2021-2022 fishing year, and 
are fully prepared to comply with the prohibition.
    This final rule is 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 for the 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 rule was developed after 
meaningful consultation and collaboration with the Council's tribal 
representative, 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 Paper Reduction Act. There are no 
relevant Federal rules that may duplicate, overlap, or conflict with 
the action.

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

    Dated: July 6, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2021-14643 Filed 7-6-21; 4:15 pm]
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