[Federal Register Volume 78, Number 21 (Thursday, January 31, 2013)]
[Proposed Rules]
[Pages 6794-6797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02012]



National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 121210694-3087-01]
RIN 0648-XC392

Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Annual Specifications

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

ACTION: Proposed rule.


SUMMARY: NMFS proposes to implement an annual catch limit (ACL), 

[[Page 6795]]

guideline (HG), and associated annual reference points for Pacific 
sardine in the U.S. exclusive economic zone (EEZ) off the Pacific coast 
for the fishing season of January 1, 2013, through December 31, 2013. 
This rule is proposed according to the Coastal Pelagic Species (CPS) 
Fishery Management Plan (FMP). The proposed 2013 maximum HG for Pacific 
sardine is 66,495 metric tons (mt). The proposed initial overall 
commercial fishing HG, that is to be allocated across the three 
allocation periods for sardine management, is 57,495 mt. This amount 
would be divided across the three seasonal allocation periods for the 
directed fishery the following way: January 1-June 30--19,123 mt; July 
1-September 14--22,998 mt; and September 15-December 31--13,374 mt with 
an incidental set-aside of 1,000 mt for each of the three periods. This 
rule is intended to conserve and manage the Pacific sardine stock off 
the U.S. West Coast.

DATES: Comments must be received by March 4, 2013.

ADDRESSES: You may submit comments on this document identified by NOAA-
NMFS-2013-0005 by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0005, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Rodney R. McInnis, 
Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., 
Suite 4200, Long Beach, CA 90802.
     Fax: (562) 980-4047
    Instructions: Comments sent by any other method, to any other 
address or individual, 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). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Copies of the report ``Assessment of Pacific Sardine Stock for U.S. 
Management in 2013'' and the Environmental Assessment/Regulatory Impact 
Review for this action may be obtained from the Southwest Regional 
Office (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, Southwest Region, 
NMFS, (562) 980-4034.

SUPPLEMENTARY INFORMATION: During public meetings each year, the 
estimated biomass for Pacific sardine is presented to the Pacific 
Fishery Management Council's (Council) Coastal Pelagic Species (CPS) 
Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) 
and the Council's Scientific and Statistical Committee (SSC), and the 
biomass and the status of the fisheries are reviewed and discussed. The 
biomass estimate is then presented to the Council along with the 
calculated overfishing limit (OFL), available biological catch (ABC), 
annual catch limit (ACL) and harvest guideline (HG), along with 
recommendations and comments from the Team, Subpanel and SSC. Following 
review by the Council and after hearing public comment, the Council 
adopts a biomass estimate and makes its catch level recommendations to 
the National Marine Fisheries Service (NMFS).
    The purpose of this proposed rule is to implement the ACL, HG and 
other annual catch reference points for 2013, including the OFL and an 
ABC that takes into consideration uncertainty surrounding the current 
estimate of biomass for Pacific sardine in the U.S. EEZ off the Pacific 
coast. The CPS FMP and its implementing regulations require NMFS to set 
these annual catch levels for the Pacific sardine fishery based on the 
annual specification framework in the FMP. This framework includes a 
harvest control rule that determines the maximum HG, the primary 
management target for the fishery, for the current fishing season. The 
HG is based, in large part, on the current estimate of stock biomass. 
The harvest control rule in the CPS FMP is HG = [(Biomass - Cutoff) * 
Fraction * Distribution] with the parameters described as follows:
    1. Biomass. The estimated stock biomass of Pacific sardine age one 
and above for the 2012 management season is 659,539 mt.
    2. Cutoff. This is the biomass level below which no commercial 
fishery is allowed. The FMP established this level at 150,000 mt.
    3. Distribution. The portion of the Pacific sardine biomass 
estimated in the EEZ off the Pacific coast is 87 percent and is based 
on the average historical larval distribution obtained from scientific 
cruises and the distribution of the resource according to the logbooks 
of aerial fish-spotters.
    4. Fraction. The harvest fraction is the percentage of the biomass 
above 150,000 mt that may be harvested.
    At the November 2012 Council meeting, the Council adopted the 2013 
Stock Assessment of the Pacific sardine resource completed by NMFS 
Southwest Fisheries Science Center and the resulting Pacific sardine 
biomass estimate of 659,539 mt. Based on recommendations from its SSC 
and other advisory bodies, the Council recommended and NMFS is 
proposing, an OFL of 103,284 mt, ABC of 94,281 mt, an ACL of 94,281 mt 
(equal to the ABC) and a maximum HG (HGs under the CPS FMP are 
operationally similar to annual catch targets (ACT)) of 66,495 metric 
tons (mt) for the 2013 Pacific sardine fishing year. Due to an 
approximately 33 percent decrease in the biomass estimate from 2012, 
the result of the HG formula is approximately 40,000 mt less than the 
2012 HG. As described above, annual biomass estimates are a parameter 
of the various harvest control rules, therefore as estimated biomass 
decreases or increases from one year to the next, the resulting 
allowable catch levels, such as the HG, will necessarily decrease or 
increase too. These catch specifications are based on the most recent 
stock assessment and the control rules established in the CPS FMP.
    The Council also recommended, and NMFS is proposing, that 57,495 mt 
be used as the initial overall commercial fishing HG to be allocated 
across the three allocation periods for sardine management. This number 
has been reduced from the maximum HG of 66,495 mt by 9,000 mt: (i) For 
potential harvest by the Quinault Indian Nation of up to 6,000 mt; and 
(ii) 3,000 mt, which is initially reserved for potential use under an 
exempted fishing permit(s) (EFPs). The Council also recommended and 
NMFS is proposing that incidental catch set asides be put in place for 
each allocation period. The purpose of the incidental set-aside 
allotments and allowance of an incidental catch-only fishery is to 
allow for the restricted incidental landings of Pacific sardine in 
other fisheries, particularly other CPS fisheries, when a seasonal 
directed fishery is closed to reduce bycatch and allow for continued 
prosecution of other important CPS fisheries. These incidental set 
asides are allocated as shown in the following table, which also shows 
the adjusted directed harvest levels for each period in metric tons:

[[Page 6796]]

                                                           July 1-September    September 15-
                                       January 1-June 30          14            December 31           Total
Total Seasonal Allocation............            20,123             22,998             14,374             57,495
                                                   (35%)              (40%)              (25%)
Incidental Set Aside.................             1,000              1,000              1,000              3,000
Adjusted Directed Harvest Allocation.            19,123             22,998             13,374             54,495

    Although the 2013 HG is well below that of the ACL, additional 
inseason accountability measures are in place to ensure the fishery 
stays within the HG. If during any of the seasonal allocation periods 
the applicable adjusted directed harvest allocation is projected to be 
taken, fishing would be closed to directed harvest and only incidental 
harvest would be allowed. For the remainder of the period, any 
incidental Pacific sardine landings would be counted against that 
period's incidental set-aside. As an additional accountability measure, 
the proposed incidental fishery would also be constrained to a 40 
percent by weight incidental catch rate when Pacific sardine are landed 
with other CPS so as to minimize the targeting of Pacific sardine and 
reduce potential discard of sardine. In the event that an incidental 
set-aside is projected to be attained, the incidental fishery will be 
closed for the remainder of the period. If the set-aside is not fully 
attained or is exceeded in a given seasonal period, the directed 
harvest allocation in the following seasonal period would automatically 
be adjusted upward or downward accordingly to account for the 
discrepancy. Additionally, if during any seasonal period the directed 
harvest allocation is not fully attained or is exceeded, then the 
following period's directed harvest total would be adjusted to account 
for the discrepancy.
    If the total HG or these apportionment levels for Pacific sardine 
are reached or are expected to be reached, the Pacific sardine fishery 
would be closed until it re-opens either per the allocation scheme or 
at the beginning of the next fishing season. The NMFS Southwest 
Regional Administrator would publish a notice in the Federal Register 
announcing the date of any such closure.
    The Council will hear proposals and comments on any potential EFPs 
at the March 2013 Council meeting and will make a final recommendation 
to NMFS on whether or not all or a portion of the 3,000 mt EFP set-
aside should be allocated for use under any EFP(s). NMFS will likely 
make a decision on whether to issue an EFP for Pacific sardine sometime 
prior to the start of the second seasonal period (July 1, 2013). Any of 
the 3,000 mt that is not issued to an EFP will be rolled into the third 
allocation period's directed fishery. Any set-aside attributed to an 
EFP designed to be conducted during the closed fishing time in the 
second allocation period (prior to September 15), but not utilized, 
will roll into the third allocation period's directed fishery. Any set-
aside attributed to an EFP designed to be conducted during closed 
fishing times in the third allocation, but not utilized, will not be 
    In 2012 the Quinault Indian Nation requested, and NMFS approved, a 
9,000 mt tribal set-aside for the exclusive right to harvest Pacific 
sardine in the Quinault Usual and Accustomed Fishing Area off the coast 
of Washington State, pursuant to the 1856 Treaty of Olympia (Treaty 
with the Quinault). For the 2013 fishing season the Quinault Indian 
Nation has again requested that NMFS provide the Quinault with a tribal 
set-aside. The Quinault Indian Nation as requested a 6,000 mt set-aside 
(3,000 mt less than was requested and approved in 2012) and NMFS is 
considering the request. If a set-aside is approved NMFS will likely 
consult with Quinault Department of Fisheries staff and Quinault 
Fisheries Policy representatives on or about September 1, 2013 to 
review Quinault catch to date, landings that have occurred in Oregon 
and Washington and any other relevant information in an attempt to 
project tribal catch for the remainder of the season. The purpose of 
this consultation will be to determine whether any part of the 2013 
Quinault Indian Nation Pacific sardine set-aside of 6,000 mt can be 
moved into the non-tribal third period allocation that begins September 
15, as occurred in 2012. In 2012, in part because only one Quinault 
vessel fished, out of the expected three, the Quinualt harvested only 
1,294.23 mt. For 2013, the Quinault expect that two tribal vessels will 
fish actively for sardine.
    The NMFS Southwest Regional Administrator will publish a notice in 
the Federal Register announcing the date of any closure to either 
directed or incidental fishing. Additionally, to ensure the regulated 
community is informed of any closure NMFS will also make announcements 
through other means available, including fax, email, and mail to 
fishermen, processors, and state fishery management agencies.
    Detailed information on the fishery and the stock assessment are 
found in the report ``Assessment of the Pacific Sardine Resource in 
2012 for U.S. Management in 2013'' (see ADDRESSES).


    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act, the Assistant Administrator, NMFS, has 
determined that this proposed rule is consistent with the CPS FMP, 
other provisions of the Magnuson-Stevens Fishery Conservation and 
Management Act, and other applicable law, subject to further 
consideration after public comment.
    These proposed specifications are exempt from review under 
Executive Order 12866.
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as 
required by section 3 of the Regulatory Flexibility Act, 5 U.S.C. Sec.  
603. The IRFA describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and the legal basis for this action are 
contained at the beginning of this section in the preamble and in the 
SUMMARY section of the preamble. The results of the analysis are stated 
below. For copies of the IRFA, and instructions on how to send comments 
on the IRFA, please see the ADDRESSES section above.
    The purpose of this proposed rule is to implement the 2013 annual 
specifications for Pacific sardine in the U.S. EEZ off the Pacific 
coast. The CPS FMP and its implementing regulations require NMFS to set 
an OFL, ABC, ACL and HG or ACT for the Pacific sardine fishery based on 
the specified harvest control rules in the FMP. A specific harvest 
control rule is applied to the current stock biomass estimate to derive 
the annual HG which is used to manage the directed commercial take of 
Pacific sardine.
    The HG is apportioned based on the following allocation scheme: 35 
percent of the HG is allocated coastwide on January 1; 40 percent of 
the HG, plus any portion not harvested from the initial allocation is 
then reallocated coastwide on July 1; and on September

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15 the remaining 25 percent, plus any portion not harvested from 
earlier allocations will be released. If the total HG or these 
apportionment levels for Pacific sardine are reached at any time, the 
Pacific sardine fishery will close until either it re-opens per the 
allocation scheme or the beginning of the next fishing season. There is 
no limit on the amount of catch that any single vessel can take during 
an allocation period or the year; the HG and seasonal allocations are 
available until fully utilized by the entire CPS fleet.
    The U.S. Small Business Administration defines small businesses 
engaged in fishing as those vessels with annual revenues of or below $4 
million. The small entities that would be affected by the proposed 
action are the vessels that compose the West Coast CPS small purse 
seine fleet. In 2012 there were approximately 96 vessels permitted to 
operate in the directed sardine fishery component of the CPS fishery 
off the U.S. West Coast; 55 vessels in the Federal CPS limited entry 
fishery off California (south of 39 N. lat.), and a combined 23 vessels 
in Oregon and Washington's state Pacific sardine fisheries. The annual 
per vessel revenue in 2012 for the West Coast CPS finfish fleet was 
well below $4 million; therefore, all of these vessels therefore are 
considered small businesses under the RFA. Because each affected vessel 
is a small business, this proposed rule has an equal effect on all of 
these small entities, and therefore will impact these small entities in 
the same manner.
    The profitability of these vessels as a result of this proposed 
rule is based on the average Pacific sardine ex-vessel price per mt. 
NMFS used average Pacific sardine ex-vessel price per mt to conduct a 
profitability analysis because cost data for the harvesting operations 
of CPS finfish vessels was unavailable.
    For the 2012 fishing year approximately 105,000 mt were available 
for harvest by the directed fishery. Approximately 95,000 mt (21,000 in 
California and 74,000 mt in Oregon and Washington) of this HG were 
harvested during the 2012 fishing season, for an estimated ex-vessel 
value of $20 million. Using these figures, the average 2012 ex-vessel 
price per mt of Pacific sardines was approximately $208.
    The proposed directed commercial fishing HG for the 2013 Pacific 
sardine fishing season (January 1, 2013 through December 31, 2013) is 
57,495 (mt). This HG is approximately 47,000 mt less than the 
allocation for 2012. If the fleet were to take the entire 2013 HG, and 
assuming a coastwide average ex-vessel price per mt of $204 (average of 
2011 and 2012 ex-vessel), the potential revenue to the fleet would be 
approximately $12 million. Therefore the proposed rule will decrease 
the effected small entities' potential profitability compared to last 
season, due to the lower HG this fishing season. However, although 
there will likely be a drop in profitability to sardine harvesting 
vessels based on this rule compared to last season, from 2007 through 
2011 the average coastwide annual ex-vessel revenue was $12.5 million; 
therefore, at current ex-vessel price per mt, the HG for 2013 should 
provide similar revenue to the five years preceding 2012. Furthermore, 
as occurred in 2012, unused sardine from the potential EFP or the 
release of any unused portion of the 6,000-mt set-aside for the 
Quinault Indian Nation might be used to supplement the amount available 
to the directed fishery during the third allocation period (September 
15 through December 31), thereby slightly increasing the potential 
revenue to the fleet.
    Additionally, revenue derived from harvesting Pacific sardine is 
typically only one factor determining the overall revenue for a 
majority of the vessels that harvest Pacific sardine; 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. For example, market squid 
have been readily available to the fishery in California over the last 
three years with total annual ex-vessel revenue averaging approximately 
$66 million over that time, compared to an annual average ex-vessel 
from sardine of $16 million over that same time period. Additionally, 
many 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.
    These vessels typically rely on multiple species for profitability 
because abundance of sardine, like the other CPS stocks, is highly 
associated with ocean conditions and different times of the year, and 
therefore are harvested at various times and areas 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, it has necessitated that the 
CPS fishery as a whole rely on a group of species for its annual 
revenues. Therefore, although there will be a potential reduction in 
sardine revenue for the small entities affected by this proposed action 
as compared to the previous season, it is difficult to predict exactly 
how this reduction will impact overall annual revenue for the fleet.
    There are no significant alternatives to this proposed rule that 
would accomplish the stated objectives of the applicable statutes and 
would also minimize any significant economic impact of this proposed 
rule on the affected small entities. The CPS FMP and its implementing 
regulations require NMFS to set an annual HG for the Pacific sardine 
fishery based on the harvest formula in the FMP. The harvest formula is 
applied to the current stock biomass estimate to determine the HG. 
Therefore, if the estimated biomass decreases or increases from one 
year to the next, the HG will necessarily decrease or increase too. 
Because the current stock biomass estimate decreased from 2012 to 2013, 
the HG also decreased. Determining the annual HG merely implements the 
established procedures of the FMP with the goal of continuing to 
provide expected net benefits to the nation, regardless of what the 
specific allowable harvest of Pacific sardine is determined to be for 
    There are no reporting, record-keeping, or other compliance 
requirements required by this proposed rule. Additionally, no other 
Federal rules duplicate, overlap or conflict with this proposed rule.
    This action does not contain a collection-of-information 
requirement for purposes of the Paper Reduction Act.

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

    Dated: January 25, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-02012 Filed 1-30-13; 8:45 am]