[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Rules and Regulations]
[Pages 39384-39387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14122]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No: 220627-0142; 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: 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, 2022, through June 30, 2023. 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 2022-
2023 Pacific sardine fishing year is 4,274 metric tons. This final rule 
is intended to conserve and manage the Pacific sardine stock off the 
U.S. West Coast.

DATES: Effective June 30, 2022.

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

[[Page 39385]]

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 2022-2023 fishing year. The 
final rule adopts, without changes, the catch levels and restrictions 
that NMFS proposed in the rule published on May 9, 2022. 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 (87 FR 
27557).
    This final rule implements an OFL of 5,506 metric tons (mt) and an 
ABC/annual catch limit (ACL) of 4,274 mt, based on CPS FMP control 
rules and a biomass estimate of Pacific sardine of 27,369 mt. This 
biomass estimate is from the 2022 update stock assessment, which was 
identified by the Council's Scientific and Statistical Committee to 
represent the best scientific information available for management of 
Pacific sardine. Per the CPS FMP, because the estimated biomass is less 
than 150,000 mt (i.e., the Rebuilding target and CUTOFF in the harvest 
guideline control rule), the primary directed fishery is set to 0 mt, 
meaning there is no primary directed fishery for Pacific sardine. This 
is the eighth 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 3,800 mt and implements management measures 
intended to ensure harvest opportunity throughout the year.
    A summary of the 2022-2023 fishing year specifications can be found 
in Table 1, and management measures are summarized in the list below 
Table 1.

           Table 1--Harvest Specifications for the 2022-2023 Sardine Fishing Year in Metric Tons (mt)
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                  Biomass estimate                        OFL         ABC         HG          ACL         ACT
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27,369..............................................      5,506       4,274           0       4,274       3,800
----------------------------------------------------------------------------------------------------------------

    Following are the management measures for commercial sardine 
harvest during the 2022-2023 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) of 
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 landings 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 2022 Council meeting, the Council approved 830 mt of the 
ACL for three EFP proposals to support stock assessments for Pacific 
sardine. If the effective date of this final rule is after July 1, 
2022, any Pacific sardine harvested between July 1, 2022, and the 
effective date will count toward the 2022-2023 ACT.
    The NMFS West Coast Regional Administrator will publish 
notification in the Federal Register to announce when catch reaches the 
incidental limits as well as any resulting changes to allowable 
incidental catch percentages. Additionally, to ensure 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 9, 2022, NMFS published a proposed rule for this action and 
solicited public comments through May 24, 2022 (87 FR 27557). NMFS 
received two public comments--one from the industry group California 
Wetfish Producers Association (Association) and one from the 
environmental group Oceana. The Association supported the proposed rule 
in its entirety. After considering the public comments, NMFS made no 
changes from the proposed rule. NMFS summarizes and responds to the 
comment from Oceana below.
    Comment: Oceana supported the prohibition on directed fishing for 
Pacific sardine, but recommended that NMFS: use a different E (maximum 
sustained yield (MSY)--fishing rate) value to calculate the OFL and 
ABC; use survey results without the distribution factor instead of the 
model-based stock assessment to set limits, or incorporate additional 
precautionary buffers if using the assessment; set the ACL no higher 
than 800 mt; limit the incidental catch allowance to no more than 10 
percent; and reduce allowable catch levels for the live bait fishery. 
In addition to those recommendations on the proposed rule, Oceana also 
recommended what they state are necessary reforms to various aspects of 
Pacific sardine management. 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. These 
include Oceana's recommendations to: revise the EMSY 
formula; change the fishing season dates to January 1-December 31 to 
align with using survey data estimates; change the distribution factor; 
increase the cutoff factor; and coordinate international management of 
the fishery. NMFS will consider these recommendations as appropriate in 
future related discussions on sardine management. But because they are 
not within the scope of this action, they will not be addressed with a 
response here.
    Response: As it relates to the comment that NMFS should use an 
EMSY of 5 percent to calculate the OFL and ABC, NMFS has 
determined that the OFL and ABC being implemented through this action 
will prevent

[[Page 39386]]

overfishing and are supported by the best scientific information 
available. Oceana claimed that the EMSY fishing rate and 
distribution factor NMFS used ``are overestimated, resulting in an OFL 
that does not prevent overfishing;'' however, we note that overfishing 
has never occurred in this fishery. Additionally, the reference points 
proposed for the 2022-2023 fishing year were recommended by the 
Council's SSC and determined by them to represent the best available 
science and are based on the formulas in the CPS FMP, including the 
formula adopted for calculating EMSY. 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--can (as it has done in the 
past) recommend changes to EMSY at any time if the best 
available science warrants such a revision, and it has not determined 
that a change is necessary at this time.
    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 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, as previously stated, NMFS has 
determined that the reference points set through this action are based 
on the best scientific information available.
    As it relates to the comment that NMFS base limits on acoustic 
trawl survey results (without the distribution factor) instead of the 
model-based stock assessment, this is out of the scope of this action; 
additionally this methodology has not been scientifically analyzed and 
therefore cannot be considered the best scientific information 
available at this time. NMFS disagrees with Oceana's alternative 
suggestion (in the event the model is still used instead of the survey 
data, per Oceana's initial suggestion) to increase the buffer between 
the OFL and ABC to account for uncertainty in the 2022 stock assessment 
update. NMFS disagrees with this because the stock assessment was 
endorsed by the Council's SSC as the best scientific information 
available for management, and NMFS determined that it represents the 
best available science for management as well. Oceana points to 
uncertainties in the stock assessment, but the ABC being implemented 
through this action is from the Council's SSC, which is responsible for 
making ABC recommendations to the Council, and which already 
incorporates a buffer to account for uncertainty. The buffer between 
OFL and ABC for this year's fishing season is appropriately smaller 
than the buffer between OFL and ABC for last year's fishing season 
because the SSC determined that this year's assessment is less 
uncertain than last year's assessment due to the addition of new data. 
NMFS also notes that, contrary to Oceana's assertions, there have been 
no ``indications of overfishing in several previous years'' that would 
warrant a more precautionary approach to setting the ABC. NMFS has 
therefore determined that it is not necessary to further reduce the ABC 
from the OFL to prevent overfishing.
    NMFS disagrees with Oceana's recommendation that the ACL should be 
no higher than 800 mt. Further reductions in catch levels beyond those 
recommended by the Council are unnecessary at this time to rebuild the 
stock or for other reasons. The OFL/ABC/ACL were all calculated in 
alignment with the rebuilding plan. The ACL should be viewed in the 
context of the OFL of 5,506 mt and the ABC of 4,274 mt, which takes 
into account scientific uncertainty surrounding the OFL. 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 SSC as the best scientific information available for setting 
the 2022-2023 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 (3,800 mt), are more than adequate to 
ensure catch does not exceed the ACL/ABC and OFL. 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). The Council 
considered the overfished status of Pacific sardine, as well as the 
uncertainty around the 2022 update assessment, and incorporated 
precautionary measures in their recommendations to NMFS to account for 
those factors. Those precautionary measures included: (1) deeming the 
assessment Tier 2; (2) using a P* value of 0.4; (3) reducing the ACT 
from the ACL; (4) reducing the EFP allowance from the requested amount; 
and (5) 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.
    As it relates to the comment that NMFS set the incidental catch 
allowance at 10 percent, NMFS notes that all harvest, regardless of how 
it is taken or at what level (i.e. 10 percent or 20 percent), is 
accounted for under the OFL/ABC/ACL/ACT for this action, and these 
levels have been determined to prevent overfishing of Pacific sardine 
and support the rebuilding of the stock. Additionally, reducing the 
incidental catch allowance is not necessary to ensure these reference 
points are not exceeded, therefore NMFS does not see a justification to 
restrict this sector further than the low catch allowance already in 
place.
    Lastly, with regard to reducing allowable catch levels for the live 
bait fishery, Oceana does not outline to what level or why restricting 
this sector beyond the ways this sector is already restricted is 
necessary. This action implements a measure providing that, if the live 
bait fishery attains 1,800 mt, there will be a 1-mt trip limit on the 
live bait fishery; this measure provides for another precautionary step 
to ensure the ACL is not exceeded.

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.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in the date of effectiveness of these final harvest 
specifications for the 2022-2023 Pacific sardine fishing season. In 
accordance with the FMP, this rule was recommended by the Council at 
its meeting in April 2022. The contents of this rule are based on the 
best scientific

[[Page 39387]]

information available on the population status of Pacific sardine, 
which became available at that April 2022 meeting. Making these final 
specifications effective on 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 2022-2023 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 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 have already been operating under a prohibition of the 
primary directed fishery for years, and are aware that the Council 
recommended that primary directed commercial fishing be prohibited 
again for the 2022-2023 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 
(87 FR 27557, May 9, 2022) and is not repeated here. As a result, a 
final regulatory flexibility analysis was not required and none was 
prepared.
    Pursuant to Executive Order 13175, this proposed 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 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: June 27, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2022-14122 Filed 6-30-22; 8:45 am]
BILLING CODE 3510-22-P