[Federal Register Volume 88, Number 120 (Friday, June 23, 2023)]
[Rules and Regulations]
[Pages 41040-41043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13416]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No: 230620-0153; 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: 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 July 1, 2023, through June 30, 
2024, fishing year. 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 2023-2024 Pacific sardine fishing year is 
3,953 metric tons. This final rule is intended

[[Page 41041]]

to conserve and manage the Pacific sardine stock off the U.S. West 
Coast.

DATES: Effective June 23, 2023.

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 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, control 
rules, and management measures in the FMP. These control rules, 
including the harvest guideline (HG) control rule, the overfishing 
limit (OFL) and acceptable biological catch (ABC) rules, along with 
other management measures 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 2023-2024 fishing year. The 
final rule adopts, without changes, the catch levels and restrictions 
that NMFS proposed in the rule published on May 16, 2023 (88 FR 31214). 
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 (88 FR 
31214, May 16, 2023).
    This final rule implements an OFL of 5,506 metric tons (mt) and an 
ABC/annual catch limit (ACL) of 3,953 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 (SSC) 
to represent the best scientific information available for management 
of Pacific sardine for this year. 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 ninth 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 
3,600 mt and implements management measures intended to ensure harvest 
opportunity throughout the year.
    A summary of the 2023-2024 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 2023-2024 Sardine Fishing Year in Metric Tons
                                                      [mt]
----------------------------------------------------------------------------------------------------------------
 Biomass estimate         OFL                ABC                 HG                ACL                ACT
----------------------------------------------------------------------------------------------------------------
         27,369              5,506              3,953                  0              3,953              3,600
----------------------------------------------------------------------------------------------------------------

    Following are the management measures for commercial sardine 
harvest during the 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) of 
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 1mt 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 2023 Council meeting, the Council approved 670 mt of the 
ACL for two EFP proposals to support stock assessments for Pacific 
sardine. NMFS published a notice of receipt of EFP applications on May 
19, 2023 (88 FR 32200), and will decide whether to issue the EFPs after 
the comment period closes on June 20, 2023. If the effective date of 
this final rule is after July 1, 2023, any Pacific sardine harvested 
between July 1, 2023, and the effective date will count toward the 
2023-2024 ACT and ACL.
    The NMFS West Coast Regional Administrator will publish a notice in 
the Federal Register to announce when catch reaches the management 
measure limits, as well as any resulting 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 16, 2023, NMFS published a proposed rule for this action and 
solicited public comments through May 31, 2023 (88 FR 31214). 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 recommended that NMFS use a lower harvest rate 
(EMSY or environmental maximum sustainable yield, which is 
used to calculate the OFL and ABC) of 5 percent to set specifications.
    Oceana also appended to their comment a timeline of sardine 
management from 1967 to 1992. As this did not contain any 
recommendations, there is no response.
    Lastly, Oceana attached a letter they sent to the Council in March 
2023, which contained more specific recommendations to the Council for 
their consideration during the April 2023 Council Agenda Item H.4, 
2023-2024 Pacific sardine annual catch limit

[[Page 41042]]

and management measures. Those recommendations included: use an 
EMSY of 5 percent; incorporate more buffer into the 
calculations for specifications; set the ACL no higher than 800 mt; and 
limit the incidental catch allowance to no more than 10 percent.
    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 overfishing and are supported by the best scientific 
information available, including the information used to calculate 
EMSY. Additionally, the reference points proposed for the 
2023-2024 fishing year were recommended by the Council's SSC, which 
they determined to represent the best available science for managing 
the fishery, and are based on the formulas in the CPS FMP, including 
the formula adopted for calculating EMSY. In its comment, 
Oceana points to recent Council discussions related to EMSY. 
NMFS notes in response 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; it 
has not determined that a change to EMSY is necessary at 
this time.
    Oceana stated that the ``. . . annual catch limit for 2023-24 is 
nearly twice the 2,200 mt annual catch NMFS assumed to support its 
conclusion that Amendment 18 would rebuild the sardine population . . 
.'' To clarify, there are two stocks of Pacific sardine that can occur 
off the U.S. West Coast, known as the northern subpopulation and the 
southern subpopulation. The northern subpopulation, managed under the 
CPS FMP, is overfished and managed under the rebuilding plan (i.e., 
Amendment 18 to the CPS FMP). The southern subpopulation, not managed 
under the CPS FMP nor part of the rebuilding plan, usually resides off 
the coast of Mexico, but in the summer months migrates north into 
waters off southern California. While the two subpopulations generally 
inhabit different geographic ranges, they do typically mix in the 
summertime, and it is impossible to distinguish between the 
subpopulations at the time of landing. Therefore, in an abundance of 
caution, NMFS counts all landed Pacific sardine against the ACL (which 
is set based on the biomass of the northern subpopulation only), 
regardless of which subpopulation they might belong to. Additionally, 
this rule includes management measures that 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).
    In its March 24, 2023, letter to the Council, Oceana referenced a 
2019 paper in support of its contention that the temperature index 
being used to calculate EMSY is flawed. NMFS is aware of the 
paper Oceana referenced 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. NMFS notes that 
research related to the appropriate temperature index to inform 
EMSY is ongoing and points out that the paper Oceana cited 
does not suggest an alternative methodology for calculating 
EMSY. NMFS has not yet determined whether, a change in how 
EMSY is calculated is necessary for management purposes. As 
previously stated, NMFS has determined that the reference points set 
through this action are based on the best scientific information 
available.
    Oceana stated that the EMSY fishing rate and 
distribution factor NMFS used to calculate the OFL ``. . . are 
overestimated, resulting in an inflated OFL that does not prevent 
overfishing.'' However, we note that overfishing has never occurred in 
this fishery, and the science supports NMFS' determination that the OFL 
implemented through this action will prevent overfishing.
    NMFS disagrees with Oceana's suggestion to increase the buffer 
between OFL and ABC. The SSC recommended that the update stocks 
assessment upon which those reference points are based be deemed a Tier 
2 assessment (meaning data moderate) and that a ``staleness'' factor be 
added to account for the time that has passed since the update 
assessment was conducted. The Council chose to use a P* of 0.4, which 
is consistent with past years. The buffer between OFL and ABC for this 
year's fishing season, 28.2 percent, is appropriately larger than the 
buffer between OFL and ABC for last year's fishing season because the 
stock assessment used for decision-making, while being best scientific 
information available, is a year older or ``staler.'' 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 
bases its recommendations on the best scientific information available. 
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 also disagrees with Oceana's recommendation that the ACL 
should be no higher than 800 mt. The OFL/ABC/ACL were all calculated in 
alignment with the rebuilding plan. 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 and the rebuilding plan for the northern subpopulation of 
Pacific sardine, which typically restrain 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). Recent catch of 
Pacific sardine (both northern and southern subpopulations) has been 
1,769 mt in the 2021-2022 season, and so far 1,110 mt in the 2022-2023 
season (ending June 30, 2023). 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 2023-2024 harvest 
specifications for Pacific sardine.
    The Council considered the overfished status of Pacific sardine, as 
well as the ``staleness'' of 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 and adding an additional ``staleness'' 
factor to that buffer; (2) using a P* value of 0.4; (3) reducing the 
ACT from the ACL; and (4) incorporating accountability measures. These 
accountability measures include: (1) limiting live bait landings to 1 
mt per landing once 2,500 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 Oceana's recommendation that NMFS set the

[[Page 41043]]

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.

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 2023-2024 Pacific sardine fishing season. In 
accordance with the FMP, this rule was recommended by the Council at 
its meeting in April 2023. The contents of this rule are based on the 
best scientific information available on the population status of 
Pacific sardine, which became available at that April 2023 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, 2023. The FMP requires a 
prohibition on primary directed fishing for Pacific sardine for the 
2023-2024 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. If these specifications are not effective by July 1, there 
would be no prohibition on the primary directed fishing, and a 
significant amount of sardine could theoretically be caught in a short 
period.
    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 2023-2024 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 
(88 FR 31214, May 16, 2023) 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 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 action.

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

    Dated: June 20, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-13416 Filed 6-22-23; 8:45 am]
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