[Federal Register Volume 88, Number 94 (Tuesday, May 16, 2023)]
[Proposed Rules]
[Pages 31214-31217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10322]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 230510-0129; RTID 0648-XC872]


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Annual Specifications; 2023-2024 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, 2023, 
through June 30, 2024. 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 2023-2024 
Pacific sardine fishing year is 3,953 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 31, 2023.

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

[[Page 31215]]

NMFS-2023-0036, 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-2023-0036 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 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 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, 2023-June 30, 2043 fishing year, management measures to ensure 
that harvest does not exceed those limits, an OFL, and an ABC that 
takes 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 metric tons (mt). This amount is 
subtracted from the annual biomass estimate before calculating the 
applicable HG for the fishing year. Because the biomass estimate used 
this year, 27,369 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 2023-2024 fishing season. This is the ninth 
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 of this determination on July 9, 2019. NMFS then 
worked with the Council to develop a rebuilding plan for Pacific which 
was finalized on 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 2023-2024 proposed harvest specifications are consistent 
with the management strategy in the rebuilding plan.
    This year, there was no new stock assessment because the Council 
had previously recommended postponing the assessment for a year so the 
SWFSC could address issues of uncertainty in the previous assessment. 
As such, the Council's SSC utilized the 2022 update stock assessment 
(``Update assessment of the Pacific sardine resource in 2022 for U.S. 
management in 2022-2023''), which the SSC previously agreed satisfied 
the Terms of Reference for an update assessment and represents the best 
scientific information available for management of Pacific sardine. The 
SSC also reviewed new information available since last year, such as a 
summer 2022 acoustic-trawl total biomass estimate of 69,506 mt and the 
outcome of the SSC CPS subcommittee meeting (March 20-21, 2023).
    Based on the 2022 update assessment and associated estimated age 1+ 
biomass of 27,369 mt and the control rules in the FMP, the Council 
recommended, and NMFS is proposing, an OFL of 5,506 mt, an ABC of 3,953 
mt, and an annual catch limit (ACL) of 3,953 mt. There would be 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, and NMFS is 
proposing, an annual catch target (ACT) of 3,600 mt for the 2023-2024 
fishing year. For comparison, the ABC/ACL and ACT established last year 
were 4,274 mt and 3,800 mt, respectively. Although the biomass estimate 
and OFL are the same this year, the proposed ABC/ACL and ACT for the 
2023-2024 fishing year are lower due to uncertainty and staleness of 
the assessment and biomass estimate.
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    \1\ For the 2023-2024 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 
in-season and other management measures to ensure harvest opportunity 
under the ACT is maintained 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

[[Page 31216]]

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 in-season 
accountability measures for the Pacific sardine 2023-2024 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 3,600 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 2023 meeting, the Council also recommended NMFS 
approve two 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 670 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.

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.
    NMFS finds that a 15-day comment period for this action provides a 
reasonable opportunity for public participation in this action pursuant 
to Administrative Procedure Act section 553(c) (5 U.S.C. 553(c)), while 
also ensuring that the final specifications are in place for the start 
of the Pacific sardine fishery on July 1, 2023. NMFS received the 
recommendations from the Council that form the basis for this rule 
after the Council's April 2023 meeting. The Council provided an 
opportunity for public comment at that meeting, as it does every year 
before adopting the recommended harvest specifications and management 
measures for the proceeding fishing year. 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. A prolonged comment period and 
subsequent potential delay in implementation past the start of the 2023 
fishing year would be contrary to the public interest, as it could 
create confusion in the Pacific sardine industry around current 
specifications and management measures.
    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 2023-2024 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 2023; 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 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 mt), the HG is zero. Because there is again no 
directed fishing for the 2023-2024 fishing year, this proposed rule 
will not change the potential profitability compared to the previous 
fishing year. Additionally, the proposed 2023-2024 ACL 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

[[Page 31217]]

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 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 10, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-10322 Filed 5-15-23; 8:45 am]
BILLING CODE 3510-22-P