Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications, 7826-7829 [E9-3531]
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Federal Register / Vol. 74, No. 33 / Friday, February 20, 2009 / Rules and Regulations
through e-mail, phone contact, NOAA
website, and other appropriate media
immediately upon issuance of the rule
by the AA.
Classification
In accordance with section 118(f)(9) of
the MMPA, the Assistant Administrator
(AA) for Fisheries has determined that
this action is necessary to implement a
take reduction plan to protect North
Atlantic right whales.
Environmental Assessments for the
DAM program were prepared on
December 28, 2001, and August 6, 2003.
This action falls within the scope of the
analyses of these EAs, which are
available from the agency upon request.
NMFS provided prior notice and an
opportunity for public comment on the
regulations establishing the criteria and
procedures for implementing a DAM
zone. Providing prior notice and
opportunity for comment on this action,
pursuant to those regulations, would be
impracticable because it would prevent
NMFS from executing its functions to
protect and reduce serious injury and
mortality of endangered right whales.
The regulations establishing the DAM
program are designed to enable the
agency to help protect unexpected
concentrations of right whales. In order
to meet the goals of the DAM program,
the agency needs to be able to create a
DAM zone and implement restrictions
on fishing gear as soon as possible once
the criteria are triggered and NMFS
determines that a DAM restricted zone
is appropriate. If NMFS were to provide
prior notice and an opportunity for
public comment upon the creation of a
DAM restricted zone, the aggregated
right whales would be vulnerable to
entanglement which could result in
serious injury and mortality.
Additionally, the right whales would
most likely move on to another location
before NMFS could implement the
restrictions designed to protect them,
thereby rendering the action obsolete.
Therefore, pursuant to 5 U.S.C.
553(b)(B), the AA finds that good cause
exists to waive prior notice and an
opportunity to comment on this action
to implement a DAM restricted zone to
reduce the risk of entanglement of
endangered right whales in commercial
lobster trap/pot and anchored gillnet
gear as such procedures would be
impracticable.
For the same reasons, the AA finds
that, under 5 U.S.C. 553(d)(3), good
cause exists to waive the 30–day delay
in effective date. If NMFS were to delay
for 30 days the effective date of this
action, the aggregated right whales
would be vulnerable to entanglement,
which could cause serious injury and
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mortality. Additionally, right whales
would likely move to another location
between the time NMFS approved the
action creating the DAM restricted zone
and the time it went into effect, thereby
rendering the action obsolete and
ineffective. Nevertheless, NMFS
recognizes the need for fishermen to
have time to either modify or remove (if
not in compliance with the required
restrictions) their gear from a DAM zone
once one is approved. Thus, NMFS
makes this action effective 2 days after
the date of publication of this document
in the Federal Register. NMFS will also
endeavor to provide notice of this action
to fishermen through other means upon
issuance of the rule by the AA, thereby
providing approximately 3 additional
days of notice while the Office of the
Federal Register processes the
document for publication.
NMFS determined that the regulations
establishing the DAM program and
actions such as this one taken pursuant
to those regulations are consistent to the
maximum extent practicable with the
enforceable policies of the approved
coastal management program of the U.S.
Atlantic coastal states. This
determination was submitted for review
by the responsible state agencies under
section 307 of the Coastal Zone
Management Act. Following state
review of the regulations creating the
DAM program, no state disagreed with
NMFS’ conclusion that the DAM
program is consistent to the maximum
extent practicable with the enforceable
policies of the approved coastal
management program for that state.
The DAM program under which
NMFS is taking this action contains
policies with federalism implications
warranting preparation of a federalism
assessment under Executive Order
13132. Accordingly, in October 2001
and March 2003, the Assistant Secretary
for Intergovernmental and Legislative
Affairs, Department of Commerce,
provided notice of the DAM program
and its amendments to the appropriate
elected officials in states to be affected
by actions taken pursuant to the DAM
program. Federalism issues raised by
state officials were addressed in the
final rules implementing the DAM
program. A copy of the federalism
Summary Impact Statement for the final
rules is available upon request
(ADDRESSES).
The rule implementing the DAM
program has been determined to be not
significant under Executive Order
12866.
Authority: 16 U.S.C. 1361 et seq. and 50
CFR 229.32(g)(3)
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Dated: February 17, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E9–3669 Filed 2–17–09; 4:15 pm]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No.0812171612–9134–02]
RIN 0648–XM21
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: Final rule; closure of directed
fishing for Pacific sardine.
SUMMARY: NMFS issues this final rule to
implement the annual harvest guideline
(HG) and management measures for
Pacific sardine in the U.S. exclusive
economic zone (EEZ) off the Pacific
coast for the fishing season of January 1,
2009, through December 31, 2009. This
HG has been determined according to
the regulations implementing the
Coastal Pelagic Species (CPS) Fishery
Management Plan (FMP) and establishes
allowable harvest levels for Pacific
sardine off the Pacific coast. This rule
also announces that the directed fishing
harvest total for the first allocation
period (January 1 - June 30) has been
reached and therefore directed fishing
for Pacific sardine is now closed until
July 1, 2009.
DATES: Effective February 20, 2009
through December 31, 2009, except for
the directed harvest closure that is
effective through June 30, 2009.
ADDRESSES: Copies of the report
‘‘Assessment of Pacific Sardine Stock
for U.S. Management in 2008’’ or the
Final Regulatory Flexibility Analysis
(FRFA) prepared for this final rule may
be obtained from the Southwest
Regional Office, Rodney R. McInnis,
Regional Administrator, Southwest
Region, NMFS, 501 West Ocean Blvd.,
Suite 4200, Long Beach, CA 90802.
FOR FURTHER INFORMATION CONTACT:
Joshua Lindsay, Southwest Region,
NMFS, (562) 980–4034.
SUPPLEMENTARY INFORMATION: The CPS
FMP, which is implemented by
regulation at 50 CFR part 660, subpart
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I, divides management unit species into
two categories: actively managed and
monitored. Harvest guidelines for
actively managed species (Pacific
sardine and Pacific mackerel) are based
on formulas applied to current biomass
estimates. Biomass estimates are not
calculated for species that are only
monitored (jack mackerel, northern
anchovy, and market squid).
During public meetings each year, the
biomass for each actively managed
species within the CPS FMP is
presented to the Pacific Fishery
Management Council’s (Council) Coastal
Pelagic Species Management Team
(Team) and the Council’s Coastal
Pelagic Species Advisory Subpanel
(Subpanel). At that time, the biomass,
the acceptable biological catch (ABC)
and the status of the fisheries are
reviewed and discussed. This
information is then presented to the
Council along with HG
recommendations and comments from
the Team and Subpanel. Following
review by the Council and after hearing
public comment, the Council makes its
HG recommendation to NMFS.
In November 2008, the Council
adopted, and NMFS then approved an
ABC or maximum HG of 66,932 mt for
the 2009 Pacific sardine fishing year.
This ABC is the result of applying a
biomass estimate of 662,886 mt to the
harvest control rule established in the
CPS FMP. This ABC/HG is 25 percent
less than the ABC/HG recommended by
the Council and adopted by NMFS for
the 2008 fishing season. The Council
recommended, and NMFS approved,
that 1,200 mt of this available ABC/HG
be initially subtracted from the ABC and
reserved for a potential industry-based
research project. NMFS will need to
issue an Exempted Fishing Permit (EFP)
for such an activity to occur and will be
requesting comments from the public on
such an EFP prior to a decision being
made. A decision on whether to issue an
EFP will be made prior to the start of the
second seasonal period which is July 1,
2009. If it is determined that an EFP
cannot be issued then the 1,200 mt will
be added to the third period’s directed
harvest allocation prior to the start of
that period.
The Council also recommended, and
NMFS approved, that the remaining
65,732 mt be used as the initial overall
HG and be allocated across the seasonal
periods established by Amendment 11
(71 FR 36999) and that an incidental
catch set-aside of 6,500 mt be
established. Subtracting this set-aside
from the initial overall HG establishes
an initial directed harvest fishery of
59,232 mt and an incidental fishery of
6,500 mt. The purpose of the incidental
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fishery is to allow for the restricted
incidental landings of Pacific sardine in
other fisheries, particularly other CPS
fisheries, if and when a seasonal
directed fishery is closed.
The directed harvest levels and
incidental set-asides are initially
allocated across the three seasonal
allocation periods in the following way:
January 1–June 30, 22,006 mt is
allocated for directed harvest with an
incidental set-aside of 1,000 mt; July 1–
September 14, 25,293 mt is allocated for
directed harvest with an incidental setaside of 1,000 mt; September 15–
December 31, 11,933 mt is allocated for
directed harvest with an incidental setaside of 4,500 mt. If during any of the
seasonal allocation periods the
applicable adjusted directed harvest
allocation is projected to be taken, the
fishery will be closed to directed
harvest, except for live bait harvest, and
only incidental harvest will be allowed.
For the remainder of the period, any
incidental Pacific sardine landings will
be counted against that period’s
incidental set-aside. The incidental
fishery will also be constrained to a 20–
percent by weight incidental catch rate
when Pacific sardine are landed with
other CPS so as to minimize the
targeting of Pacific sardine. In the event
that an incidental set-aside is projected
to be attained, all fisheries will be
closed to the retention of Pacific sardine
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 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 this discrepancy as well.
The above in-season harvest restrictions
are not intended to affect the operation
of the live bait portion of the Pacific
sardine fishery.
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 via
appropriate rulemaking until it re-opens
either per the allocation scheme or the
beginning of the next fishing season.
The Regional Administrator will
publish a notice in the Federal Register
announcing the date of such closures.
This rule announces that based on the
best available information recently
obtained from the fishery, the directed
fishing harvest total for the first
allocation period (January 1 - June 30)
has been reached and therefore directed
fishing for Pacific sardine is now closed
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7827
until July 1, 2009. Fishing vessels must
be at shore and in the process of
offloading at the time of closure.
For further background information
on this action please refer to the
preamble of the proposed rule (75 FR
252, January 5,2009).
NMFS received one comment
regarding the Pacific sardine annual
specifications.
Comment 1: The commenter stated
that the HG formula does not adequately
take into account ecosystem needs and
that of the two biomass estimates put
forth by the SSC for consideration by
the Council for management in 2009
that the lower biomass estimate and
thus the lower resulting HG should have
been chosen.
Response: NMFS agrees that Pacific
sardine is an important prey component
of the California Current ecosystem and
as such the current harvest control rule
formula used to determine the harvest
guideline for Pacific sardine takes into
account ecosystem as well as physical
environmental factors. This is achieved
by means of a formula that, after overall
biomass is determined, takes into
account the viability of the sardine stock
and its value as forage when
determining the guideline number. This
is accomplished by a harvest rate or
harvest ‘‘fraction’’ that is adjusted
between 5 percent and 15 percent based
on current ocean temperatures. Because
past shifts in sardine productivity are
linked with warm or cold ocean regimes
a higher fraction is allotted for harvest
when ocean temperatures are warmer
and sardine production is greater, while
the lower fraction is used when ocean
temperatures are cooler and sardine
production is decreased. In addition, a
150,000 mt stock biomass threshold, or
‘‘cutoff’’, is established below which no
harvest is allowed in order to ensure a
minimum spawning biomass is
protected. Each year this ‘‘cutoff’’
number of 150,000 mt is subtracted from
the overall biomass number before the
harvestable biomass is calculated to take
into account the importance of Pacific
sardine as forage.
During the November 2008 Council
meeting, the Council was presented an
updated assessment of the Pacific
sardine biomass along with outputs
from two different model runs which
resulted in two different biomass
estimates (662,886 mt and 586,369 mt)
and ultimately two different HGs
(66,932 mt and 56,946 mt). The model
run that estimated a biomass of 662,886
mt adhered to the existing assessment
configuration (approved in 2007) while
introducing the most recent data (i.e.,
2007–08 landings, 2007–08 age/length
distributions, and the Daily Egg
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Production Method estimate produced
from the California Cooperative Oceanic
Fisheries Investigation survey in April
2008), but did not meet some of the
acceptance criteria for an updated
assessment under the CPS Terms of
Reference (TOR). In contrast, the model
run that estimated a biomass of 586,369
mt adhered more closely to the CPS
TOR for updated assessments but did
not include the most recent data
described above. The SSC determined
that both assessment results were based
on the best available science, but that it
was not possible to identify which
better represents the ‘‘best available
science,’’ and therefore there was no
scientific basis for choosing one over the
other.
The Council decided to recommend
the higher of the two assessment results
because it incorporated the most recent
data, was determined by the experts on
the SSC to reflect the ‘‘best available
science,’’ and because the resulting HG
would lessen the economic losses likely
to result from reducing the HG
compared to 2008. NMFS believes the
recommendation of the Council was
appropriate because the conservative
nature of the harvest control rule for
Pacific sardine (as described in this
section) ensures the HG will not
threaten the Pacific sardine stock, the
fact that both assessment results
constituted the best available science,
and because the higher HG provides a
greater opportunity to achieve optimum
Yield.
Classification
The Administrator, Southwest Region,
NMFS, determined that this final rule is
necessary for the conservation and
management of the CPS fishery and that
it is consistent with the MagnusonStevens Fishery Conservation and
Management Act and other applicable
laws.
NMFS finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) for the closure of the
January 1–June 30 directed harvest of
Pacific sardine. For the reasons set forth
below, notice and comment procedures
are impracticable and contrary to the
public interest. These measures respond
to the best available information and are
necessary for the conservation and
management of the Pacific sardine
resource. The most recent data from the
fishery, received by NMFS on February
1, 2009, shows that reported landings as
well as the current rate of fishing are
significantly greater than anticipated.
Based on this data, NMFS believes that
the directed harvest allocation for the
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period January 1 through June 30 will be
attained much sooner than predicted
and prior to publication of this
rulemaking. A delay in effectiveness
would cause the fishery to further
exceed the in-season directed harvest
level. These seasonal harvest levels are
important mechanisms in preventing
overfishing and managing the fishery at
optimum yield. The established directed
and incidental harvest allocations are
designed to allow fair and equitable
opportunity to the resource by all
sectors of the Pacific sardine fishery and
to allow access to other profitable CPS
fisheries, such as squid and Pacific
mackerel. Many of the same fishermen
who harvest Pacific sardine rely on
these other fisheries for a significant
portion of their income. For the same
reasons, NMFS finds good cause under
5 U.S.C. 553(d)(3) to waive the 30–day
delay in effectiveness for both the
establishment of the harvest guideline
and closure of the January 1 June 30
directed harvest. To help keep the
regulated community informed of the
potential for an early closure, NMFS
advised the CPS Advisory Subpanel that
based on current landings directed
harvest would likely be closed before
the end of February. The Subpanel is
comprised of representatives from all
sectors and regions of the sardine
industry, including processors,
fishermen, user groups, conservation
groups and fishermen association
representatives. As landing totals
become available, they are also posted
on NMFS’ Southwest Regional Office
website, https://swr.nmfs.noaa.gov/.
NMFS will also announce this the
harvest guidelines and closure through
other means available, including fax,
email, and mail to fishermen,
processors, and state fishery
management agencies. Therefore, NMFS
finds that there is good cause to waive
the 30–day delay in effectiveness in this
circumstance.
This final rule is exempt from Office
of Management and Budget review
under Executive Order 12866.
No issues were raised by public
comments in response to the IRFA or on
the economic impacts of the rule
generally. Therefore, no changes were
made to the IRFA. 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 FRFA are stated
below. For copies of the FRFA please
see the ADDRESSES section above.
The purpose of this final rule is to
implement the 2009 HG for Pacific
sardine in the U.S. EEZ off the Pacific
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coast. The HG is promulgated according
to the regulations implementing the CPS
FMP and establishes allowable harvest
levels for Pacific sardine off the Pacific
coast. The HG is determined using an
environmentally-based formula
accounting for the effect of ocean
conditions on stock productivity.
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
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 is closed
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 small entities that are affected by
this action are the vessels that compose
the U.S. West Coast CPS finfish fleet.
Approximately 107 vessels are
permitted to operate in the sardine
fishery component of the CPS fishery:
63 permits in the Federal CPS limited
entry fishery off California (south of 39°
N. lat.), and a combined 44 permits in
Oregon and Washington’s state Pacific
sardine fisheries. This final rule has an
equal effect on all of these small entities
and therefore will impact a substantial
number of these small entities in the
same manner. These vessels are
considered small business entities by
the U.S. Small Business Administration
since the vessels do not have annual
receipts in excess of $4.0 million.
Therefore, there would be no economic
impacts resulting from
disproportionality between small and
large business entities under this action.
The profitability of these vessels as a
result of this final rule are 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 2008 fishing year the HG was
set at 89,093 mt. Approximately 87,000
mt (58,000 in California and 29,000 in
Oregon and Washington) of this HG was
harvested during the 2008 fishing
season with an estimated ex-vessel
value of $14.5 million. Although the
2008 HG was 42 percent lower than the
HG for 2007, due to an increase in
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average annual ex-vessel price per
pound annual ex-vessel revenue for
2008 was similar to that in 2007.
The HG for the 2009 Pacific sardine
fishing season (January 1, 2009 through
December 31, 2009) is 65,732 metric
tons (mt). This HG is 25 percent lower
than the 2008 HG. If the fleet were to
take the entire 2009 HG, and assuming
a coastwide average ex-vessel price per
mt of $168, the potential revenue to the
fleet would be approximately $11
million. This would be similar to the
average total coastwide ex-vessel value
achieved from 2002–2007. Whether this
will occur depends greatly on market
forces within the fishery and on the
regional availability of the resource to
the fleets and the fleets’ ability to find
pure schools of Pacific sardine. A
change in the market and/or the
potential lack of availability of the
resource to the fleets could cause a
reduction in the amount of Pacific
sardine that is harvested, in turn,
reducing the total revenue to the fleet
from Pacific sardine.
There will likely be a drop in
profitability based on this final rule
compared to last season due to the
lower HG this year. However, from 2002
through 2007 the average coastwide
annual ex-vessel revenue was $11
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16:40 Feb 19, 2009
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million, therefore at current ex-vessel
price per mt, the harvest guideline for
2009 should provide similar revenue as
seen from 2002 through 2007.
No significant alternatives to this final
rule exist that would accomplish the
stated objectives of the applicable
statutes and which would 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 ABC,
from which the HG is then derived.
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
annual allowable harvest of Pacific
sardine is determined to be.
There are no reporting, recordkeeping,
or other compliance requirements
required by this final rule. Additionally,
no other Federal rules duplicate,
overlap or conflict with this final rule.
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Small Business Compliance Guide
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996 states that, for each rule or group
of related rules for which an agency is
required to prepare a FRFA, the agency
shall publish one or more guides to
assist small entities in complying with
the rule, and shall designate such
publications as ‘‘small entity
compliance guides.’’ The agency shall
explain the actions a small entity is
required to take to comply with a rule
or group of rules. As part of this
rulemaking process, a notice to
fishermen that also serves as a small
entity compliance guide (guide) was
prepared and will be distributed to
fishermen and processors. The guide
will also be available on the internet at
https://swr.nmfs.noaa.gov. Copies of this
final rule and guide, i.e. notice to
fishermen, will be available upon
request from the Southwest Regional
Office (see ADDRESSES).
Authority: 16 U.S.C. 1801 et seq.
Dated: February 12, 2009.
James W. Balsiger,
Acting Assistant Administrator For Fisheries,
National Marine Fisheries Service.
[FR Doc. E9–3531 Filed 2–13–09; 4:15 pm]
BILLING CODE 3510–22–S
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]]>Agencies
[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Rules and Regulations]
[Pages 7826-7829]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3531]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No.0812171612-9134-02]
RIN 0648-XM21
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: Final rule; closure of directed fishing for Pacific sardine.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement the annual harvest
guideline (HG) and management measures for Pacific sardine in the U.S.
exclusive economic zone (EEZ) off the Pacific coast for the fishing
season of January 1, 2009, through December 31, 2009. This HG has been
determined according to the regulations implementing the Coastal
Pelagic Species (CPS) Fishery Management Plan (FMP) and establishes
allowable harvest levels for Pacific sardine off the Pacific coast.
This rule also announces that the directed fishing harvest total for
the first allocation period (January 1 - June 30) has been reached and
therefore directed fishing for Pacific sardine is now closed until July
1, 2009.
DATES: Effective February 20, 2009 through December 31, 2009, except
for the directed harvest closure that is effective through June 30,
2009.
ADDRESSES: Copies of the report ``Assessment of Pacific Sardine Stock
for U.S. Management in 2008'' or the Final Regulatory Flexibility
Analysis (FRFA) prepared for this final rule may be obtained from the
Southwest Regional Office, Rodney R. McInnis, Regional Administrator,
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach,
CA 90802.
FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, Southwest Region,
NMFS, (562) 980-4034.
SUPPLEMENTARY INFORMATION: The CPS FMP, which is implemented by
regulation at 50 CFR part 660, subpart
[[Page 7827]]
I, divides management unit species into two categories: actively
managed and monitored. Harvest guidelines for actively managed species
(Pacific sardine and Pacific mackerel) are based on formulas applied to
current biomass estimates. Biomass estimates are not calculated for
species that are only monitored (jack mackerel, northern anchovy, and
market squid).
During public meetings each year, the biomass for each actively
managed species within the CPS FMP is presented to the Pacific Fishery
Management Council's (Council) Coastal Pelagic Species Management Team
(Team) and the Council's Coastal Pelagic Species Advisory Subpanel
(Subpanel). At that time, the biomass, the acceptable biological catch
(ABC) and the status of the fisheries are reviewed and discussed. This
information is then presented to the Council along with HG
recommendations and comments from the Team and Subpanel. Following
review by the Council and after hearing public comment, the Council
makes its HG recommendation to NMFS.
In November 2008, the Council adopted, and NMFS then approved an
ABC or maximum HG of 66,932 mt for the 2009 Pacific sardine fishing
year. This ABC is the result of applying a biomass estimate of 662,886
mt to the harvest control rule established in the CPS FMP. This ABC/HG
is 25 percent less than the ABC/HG recommended by the Council and
adopted by NMFS for the 2008 fishing season. The Council recommended,
and NMFS approved, that 1,200 mt of this available ABC/HG be initially
subtracted from the ABC and reserved for a potential industry-based
research project. NMFS will need to issue an Exempted Fishing Permit
(EFP) for such an activity to occur and will be requesting comments
from the public on such an EFP prior to a decision being made. A
decision on whether to issue an EFP will be made prior to the start of
the second seasonal period which is July 1, 2009. If it is determined
that an EFP cannot be issued then the 1,200 mt will be added to the
third period's directed harvest allocation prior to the start of that
period.
The Council also recommended, and NMFS approved, that the remaining
65,732 mt be used as the initial overall HG and be allocated across the
seasonal periods established by Amendment 11 (71 FR 36999) and that an
incidental catch set-aside of 6,500 mt be established. Subtracting this
set-aside from the initial overall HG establishes an initial directed
harvest fishery of 59,232 mt and an incidental fishery of 6,500 mt. The
purpose of the incidental fishery is to allow for the restricted
incidental landings of Pacific sardine in other fisheries, particularly
other CPS fisheries, if and when a seasonal directed fishery is closed.
The directed harvest levels and incidental set-asides are initially
allocated across the three seasonal allocation periods in the following
way: January 1-June 30, 22,006 mt is allocated for directed harvest
with an incidental set-aside of 1,000 mt; July 1-September 14, 25,293
mt is allocated for directed harvest with an incidental set-aside of
1,000 mt; September 15-December 31, 11,933 mt is allocated for directed
harvest with an incidental set-aside of 4,500 mt. If during any of the
seasonal allocation periods the applicable adjusted directed harvest
allocation is projected to be taken, the fishery will be closed to
directed harvest, except for live bait harvest, and only incidental
harvest will be allowed. For the remainder of the period, any
incidental Pacific sardine landings will be counted against that
period's incidental set-aside. The incidental fishery will also be
constrained to a 20-percent by weight incidental catch rate when
Pacific sardine are landed with other CPS so as to minimize the
targeting of Pacific sardine. In the event that an incidental set-aside
is projected to be attained, all fisheries will be closed to the
retention of Pacific sardine 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 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 this
discrepancy as well. The above in-season harvest restrictions are not
intended to affect the operation of the live bait portion of the
Pacific sardine fishery.
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 via appropriate rulemaking until it re-opens either per
the allocation scheme or the beginning of the next fishing season. The
Regional Administrator will publish a notice in the Federal Register
announcing the date of such closures.
This rule announces that based on the best available information
recently obtained from the fishery, the directed fishing harvest total
for the first allocation period (January 1 - June 30) has been reached
and therefore directed fishing for Pacific sardine is now closed until
July 1, 2009. Fishing vessels must be at shore and in the process of
offloading at the time of closure.
For further background information on this action please refer to
the preamble of the proposed rule (75 FR 252, January 5,2009).
NMFS received one comment regarding the Pacific sardine annual
specifications.
Comment 1: The commenter stated that the HG formula does not
adequately take into account ecosystem needs and that of the two
biomass estimates put forth by the SSC for consideration by the Council
for management in 2009 that the lower biomass estimate and thus the
lower resulting HG should have been chosen.
Response: NMFS agrees that Pacific sardine is an important prey
component of the California Current ecosystem and as such the current
harvest control rule formula used to determine the harvest guideline
for Pacific sardine takes into account ecosystem as well as physical
environmental factors. This is achieved by means of a formula that,
after overall biomass is determined, takes into account the viability
of the sardine stock and its value as forage when determining the
guideline number. This is accomplished by a harvest rate or harvest
``fraction'' that is adjusted between 5 percent and 15 percent based on
current ocean temperatures. Because past shifts in sardine productivity
are linked with warm or cold ocean regimes a higher fraction is
allotted for harvest when ocean temperatures are warmer and sardine
production is greater, while the lower fraction is used when ocean
temperatures are cooler and sardine production is decreased. In
addition, a 150,000 mt stock biomass threshold, or ``cutoff'', is
established below which no harvest is allowed in order to ensure a
minimum spawning biomass is protected. Each year this ``cutoff'' number
of 150,000 mt is subtracted from the overall biomass number before the
harvestable biomass is calculated to take into account the importance
of Pacific sardine as forage.
During the November 2008 Council meeting, the Council was presented
an updated assessment of the Pacific sardine biomass along with outputs
from two different model runs which resulted in two different biomass
estimates (662,886 mt and 586,369 mt) and ultimately two different HGs
(66,932 mt and 56,946 mt). The model run that estimated a biomass of
662,886 mt adhered to the existing assessment configuration (approved
in 2007) while introducing the most recent data (i.e., 2007-08
landings, 2007-08 age/length distributions, and the Daily Egg
[[Page 7828]]
Production Method estimate produced from the California Cooperative
Oceanic Fisheries Investigation survey in April 2008), but did not meet
some of the acceptance criteria for an updated assessment under the CPS
Terms of Reference (TOR). In contrast, the model run that estimated a
biomass of 586,369 mt adhered more closely to the CPS TOR for updated
assessments but did not include the most recent data described above.
The SSC determined that both assessment results were based on the best
available science, but that it was not possible to identify which
better represents the ``best available science,'' and therefore there
was no scientific basis for choosing one over the other.
The Council decided to recommend the higher of the two assessment
results because it incorporated the most recent data, was determined by
the experts on the SSC to reflect the ``best available science,'' and
because the resulting HG would lessen the economic losses likely to
result from reducing the HG compared to 2008. NMFS believes the
recommendation of the Council was appropriate because the conservative
nature of the harvest control rule for Pacific sardine (as described in
this section) ensures the HG will not threaten the Pacific sardine
stock, the fact that both assessment results constituted the best
available science, and because the higher HG provides a greater
opportunity to achieve optimum Yield.
Classification
The Administrator, Southwest Region, NMFS, determined that this
final rule is necessary for the conservation and management of the CPS
fishery and that it is consistent with the Magnuson-Stevens Fishery
Conservation and Management Act and other applicable laws.
NMFS finds good cause to waive the requirement to provide prior
notice and opportunity for public comment pursuant to the authority set
forth at 5 U.S.C. 553(b)(B) for the closure of the January 1-June 30
directed harvest of Pacific sardine. For the reasons set forth below,
notice and comment procedures are impracticable and contrary to the
public interest. These measures respond to the best available
information and are necessary for the conservation and management of
the Pacific sardine resource. The most recent data from the fishery,
received by NMFS on February 1, 2009, shows that reported landings as
well as the current rate of fishing are significantly greater than
anticipated. Based on this data, NMFS believes that the directed
harvest allocation for the period January 1 through June 30 will be
attained much sooner than predicted and prior to publication of this
rulemaking. A delay in effectiveness would cause the fishery to further
exceed the in-season directed harvest level. These seasonal harvest
levels are important mechanisms in preventing overfishing and managing
the fishery at optimum yield. The established directed and incidental
harvest allocations are designed to allow fair and equitable
opportunity to the resource by all sectors of the Pacific sardine
fishery and to allow access to other profitable CPS fisheries, such as
squid and Pacific mackerel. Many of the same fishermen who harvest
Pacific sardine rely on these other fisheries for a significant portion
of their income. For the same reasons, NMFS finds good cause under 5
U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for both
the establishment of the harvest guideline and closure of the January 1
June 30 directed harvest. To help keep the regulated community informed
of the potential for an early closure, NMFS advised the CPS Advisory
Subpanel that based on current landings directed harvest would likely
be closed before the end of February. The Subpanel is comprised of
representatives from all sectors and regions of the sardine industry,
including processors, fishermen, user groups, conservation groups and
fishermen association representatives. As landing totals become
available, they are also posted on NMFS' Southwest Regional Office
website, https://swr.nmfs.noaa.gov/. NMFS will also announce this the
harvest guidelines and closure through other means available, including
fax, email, and mail to fishermen, processors, and state fishery
management agencies. Therefore, NMFS finds that there is good cause to
waive the 30-day delay in effectiveness in this circumstance.
This final rule is exempt from Office of Management and Budget
review under Executive Order 12866.
No issues were raised by public comments in response to the IRFA or
on the economic impacts of the rule generally. Therefore, no changes
were made to the IRFA. 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 FRFA are stated below. For copies of
the FRFA please see the ADDRESSES section above.
The purpose of this final rule is to implement the 2009 HG for
Pacific sardine in the U.S. EEZ off the Pacific coast. The HG is
promulgated according to the regulations implementing the CPS FMP and
establishes allowable harvest levels for Pacific sardine off the
Pacific coast. The HG is determined using an environmentally-based
formula accounting for the effect of ocean conditions on stock
productivity.
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 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 is
closed 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 small entities that are affected by this action are the vessels
that compose the U.S. West Coast CPS finfish fleet. Approximately 107
vessels are permitted to operate in the sardine fishery component of
the CPS fishery: 63 permits in the Federal CPS limited entry fishery
off California (south of 39[deg] N. lat.), and a combined 44 permits in
Oregon and Washington's state Pacific sardine fisheries. This final
rule has an equal effect on all of these small entities and therefore
will impact a substantial number of these small entities in the same
manner. These vessels are considered small business entities by the
U.S. Small Business Administration since the vessels do not have annual
receipts in excess of $4.0 million. Therefore, there would be no
economic impacts resulting from disproportionality between small and
large business entities under this action.
The profitability of these vessels as a result of this final rule
are 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 2008 fishing year the HG was set at 89,093 mt.
Approximately 87,000 mt (58,000 in California and 29,000 in Oregon and
Washington) of this HG was harvested during the 2008 fishing season
with an estimated ex-vessel value of $14.5 million. Although the 2008
HG was 42 percent lower than the HG for 2007, due to an increase in
[[Page 7829]]
average annual ex-vessel price per pound annual ex-vessel revenue for
2008 was similar to that in 2007.
The HG for the 2009 Pacific sardine fishing season (January 1, 2009
through December 31, 2009) is 65,732 metric tons (mt). This HG is 25
percent lower than the 2008 HG. If the fleet were to take the entire
2009 HG, and assuming a coastwide average ex-vessel price per mt of
$168, the potential revenue to the fleet would be approximately $11
million. This would be similar to the average total coastwide ex-vessel
value achieved from 2002-2007. Whether this will occur depends greatly
on market forces within the fishery and on the regional availability of
the resource to the fleets and the fleets' ability to find pure schools
of Pacific sardine. A change in the market and/or the potential lack of
availability of the resource to the fleets could cause a reduction in
the amount of Pacific sardine that is harvested, in turn, reducing the
total revenue to the fleet from Pacific sardine.
There will likely be a drop in profitability based on this final
rule compared to last season due to the lower HG this year. However,
from 2002 through 2007 the average coastwide annual ex-vessel revenue
was $11 million, therefore at current ex-vessel price per mt, the
harvest guideline for 2009 should provide similar revenue as seen from
2002 through 2007.
No significant alternatives to this final rule exist that would
accomplish the stated objectives of the applicable statutes and which
would 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 ABC,
from which the HG is then derived. 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 annual allowable harvest of Pacific sardine is
determined to be.
There are no reporting, recordkeeping, or other compliance
requirements required by this final rule. Additionally, no other
Federal rules duplicate, overlap or conflict with this final rule.
Small Business Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a notice to fishermen that also serves as a
small entity compliance guide (guide) was prepared and will be
distributed to fishermen and processors. The guide will also be
available on the internet at https://swr.nmfs.noaa.gov. Copies of this
final rule and guide, i.e. notice to fishermen, will be available upon
request from the Southwest Regional Office (see ADDRESSES).
Authority: 16 U.S.C. 1801 et seq.
Dated: February 12, 2009.
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries
Service.
[FR Doc. E9-3531 Filed 2-13-09; 4:15 pm]
BILLING CODE 3510-22-S
