[Federal Register Volume 87, Number 89 (Monday, May 9, 2022)]
[Proposed Rules]
[Pages 27557-27560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09926]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 220503-0110; RTID 0648-XB877]


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Annual Specifications; 2022-2023 Annual Specifications and 
Management Measures for Pacific Sardine

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

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, 2022, 
through June 30, 2023. 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 
for use as live bait, in 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 2022-2023 
Pacific sardine fishing year is 4,274 metric tons. This proposed rule 
is intended to conserve, manage, and rebuild the Pacific sardine stock 
off the U.S. West Coast.

DATES: Comments must be received by May 24, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2022-0046, 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-2022-0046 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

[[Page 27558]]

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 CPS 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 July 1, 2022--June 30, 2023 
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 CPS 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 at 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. Because this year's biomass estimate, 27,369 
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 2022-2023 fishing season. This is the eighth 
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. NMFS worked with the Council to 
develop a rebuilding plan for Pacific sardine to implement within two 
years of the date and finalized it June 24, 2021 (86 FR 33142). The 
rebuilding plan (Amendment 18 to the CPS FMP) stipulates that total 
catch limits (i.e., OFL/ABC/ACL) are to be set annually based on annual 
stock assessments, the control rules in the FMP, and recommendations 
from the SSC regarding uncertainty in the assessment and OFL. The 
rebuilding plan also includes the following management measures: (1) 
Closing the primary directed fishery until the biomass reaches or 
exceeds 150,000 mt; (2) restricting incidental limits in other primary 
directed CPS fisheries to no more than 20 percent until the biomass 
reaches or exceeds 50,000 mt; (3) limiting catch in the minor directed 
fishery to 1 mt per trip per day; and (4) other management measure the 
Council may recommend. The 2022-2023 proposed harvest specifications 
are consistent with the management strategy in the rebuilding plan.
    At the Council's April 2022 meeting, the Council's SSC reviewed the 
SWFSC 2022-2023 Pacific sardine stock assessment ``Update assessment of 
the Pacific sardine resource in 2022 for U.S. management in 2022-
2023.'' The SWFSC completes annual assessments for Pacific sardine. The 
type of assessment alternates between benchmark assessments in one year 
and update assessments the following two years. Both types of 
assessments are based largely on data collected from annual research 
cruises. The SSC agreed that the SWFSC's 2022-2023 assessment satisfied 
the Terms of Reference for an update assessment and that it represents 
the best scientific information available for management of Pacific 
sardine.
    Based on this year's biomass estimate and the harvest control rule 
in the FMP, the Council recommended, and NMFS is proposing for the 
2022-2023 fishing year, an OFL of 5,506 mt, an ABC of 4,274 mt, an 
annual catch limit (ACL) of 4,274 mt, and a prohibition on commercial 
Pacific sardine catch, unless it is harvested as part of the live bait, 
tribal,\1\ 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 3,800 mt for 
the 2022-2023 fishing year. For comparison, the ABC/ACL and ACT adopted 
last year were 3,329 mt and 3,000 mt, respectively. Although the 
biomass estimates in 2021and 2022 are similar (28,276 mt and 27,369 mt, 
respectively), the proposed ABC/ACL and ACT for the 2022-2023 fishing 
year are higher due to the SSC's determination that there is less 
uncertainty associated with this year's biomass estimate compared to 
last year, resulting in a decrease in the scientific uncertainty buffer 
between the OFL and ABC.
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    \1\ For the 2022-2023 fishing year, the Quinault Indian Nation 
has not requested a tribal set-aside, and therefore none is 
proposed.
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    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, which are discussed in the next 
section.

Recommended Management Measures

    The proposed annual harvest limits and management measures were 
developed in the context of NMFS' July 2019 declaration that the 
Pacific sardine stock was overfished and June 2021 approval of a 
rebuilding plan for the stock. Because 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

[[Page 27559]]

accountability measures for the Pacific sardine 2022-2023 fishing year:
    (1) If landings in the live bait fishery reach 2,500 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 3,800 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.
    At the April 2022 meeting, the Council also recommended NMFS 
approve three EFP proposals requesting an exemption from the 
prohibition to directly harvest sardine during their discussion of 
sardine management measures. Those EFP proposals include a total amount 
of up to 830 mt of the ACL.
    All sources of catch including any fishing occurring as part of an 
EFP, 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 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.
    This action must be effective by July 1, 2022; 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 2022 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.
    The purpose of this proposed rule is to conserve and rebuild the 
Pacific sardine stock by preventing overfishing, while still allowing 
harvest opportunity among differing fishery sectors. This will be 
accomplished by implementing the 2022-2023 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. 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 2022; 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 rulemaking 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 annual catch target 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 metric tons (mt)), the HG is zero. Because there 
is again no directed fishing for the 2022-2023 fishing year, this 
proposed rule will not change the potential profitability compared to 
the previous fishing year. Additionally, the proposed 2022-2023 ACL is 
slightly higher compared to previous years, and 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

[[Page 27560]]

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 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. 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 3, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2022-09926 Filed 5-6-22; 8:45 am]
BILLING CODE 3510-22-P