Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications, 47318-47322 [2012-19419]
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bluefin tuna landed by owners of
vessels not permitted to do so under
§ 635.4, or purchase, receive, or transfer,
or attempt to purchase, receive, or
transfer Atlantic bluefin tuna without
the appropriate valid Federal Atlantic
tunas dealer permit issued under
§ 635.4. Purchase, receive, or transfer or
attempt to purchase, receive, or transfer,
for commercial purposes, other than
solely for transport, any BAYS tunas,
swordfish, or sharks landed by owners
of vessels not permitted to do so under
§ 635.4, or purchase, receive, or transfer,
or attempt to purchase, receive, or
transfer, for commercial purposes, other
than solely for transport, any BAYS
tunas, swordfish, or sharks without the
appropriate valid dealer permit issued
under § 635.4 or submission of reports
by dealers to NMFS according to
reporting requirements specified in
§ 635.5. This prohibition does not apply
to a shark harvested from a vessel that
has not been issued a permit under this
part and that fishes exclusively within
the waters under the jurisdiction of any
state.
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(55) Fail to electronically submit an
Atlantic HMS dealer report through the
HMS electronic dealer reporting system
to report BAYS tunas, swordfish, and
sharks to NMFS in accordance with
§ 635.5, if issued, or required to be
issued, a Federal Atlantic HMS dealer
permit pursuant to § 635.4.
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(d) * * *
(11) First receive or attempt to first
receive Atlantic sharks without a valid
Federal Atlantic shark dealer or proxy
Atlantic shark identification workshop
certificate issued to the dealer or proxy
or fail to be certified for completion of
a NMFS Atlantic shark identification
workshop in violation of § 635.8.
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(14) First receive or attempt to first
receive Atlantic sharks without making
available for inspection, at each of the
dealer’s places of business listed on the
dealer permit which first receives
Atlantic sharks, an original, valid dealer
or proxy Atlantic shark identification
workshop certificate issued by NMFS to
the dealer or proxy in violation of
§ 635.8(b), except that trucks or other
conveyances of the business must
possess a copy of such certificate.
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(16) First receive or attempt to first
receive a shark or sharks or part of a
shark or sharks landed in excess of the
retention limits specified in § 635.24(a).
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[FR Doc. 2012–19457 Filed 8–7–12; 8:45 am]
BILLING CODE 3510–22–P
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 120312182–2239–02]
RIN 0648–XA882
Fisheries Off West Coast States;
Coastal Pelagic Species Fisheries;
Annual Specifications
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues this final rule to
implement the annual catch limit (ACL),
harvest 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, 2012,
through December 31, 2012. These
specifications were determined
according to the Coastal Pelagic Species
(CPS) Fishery Management Plan (FMP).
The 2012 maximum HG for Pacific
sardine is 109,409 metric tons (mt). The
initial overall commercial fishing HG,
that is to be allocated across the three
allocation periods for sardine
management, is 97,409 mt. This amount
has been divided across the three
seasonal allocation periods for the
directed fishery the following way:
January 1–June 30—33,093 mt; July 1–
September 14—37,964 mt; and
September 15–December 31—23,352 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: Effective August 8, 2012 through
December 31, 2012.
FOR FURTHER INFORMATION CONTACT:
Joshua Lindsay, Southwest Region,
NMFS, (562) 980–4034.
SUPPLEMENTARY INFORMATION: During the
Pacific Fishery Management Council’s
(Council) annual public meetings, the
NMFS Southwest Fisheries Science
Center presents the estimated biomass
for Pacific sardine to the Council’s CPS
Management Team (Team), the
Council’s CPS Advisory Subpanel
(Subpanel), the Council’s Scientific and
Statistical Committee (SSC) and the
Council. After the biomass and the
status of the fisheries are reviewed and
discussed, the SSC and other advisory
bodies then provide the calculated
overfishing limit (OFL), available
biological catch (ABC), ACL and ACT
SUMMARY:
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(and/or HG) recommendations.
Following review by the Council and
after considering public comment, the
Council adopts a biomass estimate and
makes its catch level recommendations
to NMFS.
After review of the Council’s
recommendations from the November
2011 Council meeting, NMFS
implements in this rule the 2012 ACL,
HG and other annual catch reference
points, including an 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.
This level is reduced from the
Maximum Sustainable Yield/OFL level
for economic and ecological
considerations. The HG is based, in
large part, on the current estimate of
stock biomass for the northern
subpopulation of Pacific sardine. 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 988,385 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
northern subpopulation of the Pacific
sardine biomass estimated in the EEZ
off the Pacific coast is 87 percent. This
parameter is used to prorate the biomass
used to calculate the target harvest level
to account for the transboundary nature
of the resource.
4. Fraction. The harvest fraction is the
percentage of the biomass above 150,000
mt that may be harvested.
At the November 2011 Council
meeting, the Council adopted the 2012
assessment of the Pacific sardine
resource and a Pacific sardine biomass
estimate of 988,385 mt. Based on
recommendations from its SSC and
other advisory bodies, the Council
recommended, and NMFS is
implementing, an overfishing limit of
154,781 mt, an acceptable biological
catch (ABC) of 141,289 mt, an annual
catch limit of 141,289 mt (equal to the
ABC) and a maximum harvest guideline
(HG) (HGs under the CPS FMP are
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Federal Register / Vol. 77, No. 153 / Wednesday, August 8, 2012 / Rules and Regulations
operationally similar to annual catch
targets (ACT)) of 109,409 metric tons
(mt) for the 2012 Pacific sardine fishing
year. 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 implementing, establishment
of an the initial overall commercial
fishing HG of 97,409 mt Pacific sardine
and allocation of that HG across the
three allocation periods. This number
has been reduced from the maximum
HG by 12,000 mt: (i) For potential
harvest by the Quinault Indian Nation of
up to 9,000 mt; and (ii) 3,000 mt, which
is initially reserved for potential use
under an exempted fishing permit(s)
(EFPs). Additionally, incidental catch
set asides are in place for each
allocation period. The purpose of the
incidental set-aside allotments and
allowance of an incidental catch-only
January 1–
June 30
Total Seasonal Allocation ........................................................................
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Incidental Set Aside .................................................................................
Adjusted Directed Harvest Allocation ......................................................
Although the 2012 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 will be closed to directed
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 30 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, the
incidental fishery will be closed for the
remainder of the period. If the set-aside
is either not fully attained or is
exceeded in a given seasonal period, the
directed harvest allocation in the
following seasonal period will
automatically be adjusted upward or
downward accordingly to account for
the discrepancy. Additionally, if during
any seasonal period the directed harvest
allocation is either not fully attained or
is exceeded, then the following period’s
directed harvest total will be adjusted to
account for the discrepancy, as well.
If the total HG or these apportionment
levels for Pacific sardine are reached or
are expected to be reached, the Pacific
sardine fishery will be closed until it reopens either per the allocation scheme
or at the beginning of the next fishing
season. The NMFS Southwest Regional
Administrator will publish a notice in
the Federal Register announcing the
date of any such closure.
At the April 2012 Council meeting the
Council approved and subsequently
made a recommendation to NMFS to
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approve an EFP for all of the 3,000 mt
EFP set-aside. 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, 2012). 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. In response to a request by the
Quinault Indian Nation for the exclusive
right to harvest Pacific sardine in 2012
in their Usual and Accustomed Fishing
Area off the coast of Washington State,
pursuant to their rights to fish under the
1856 Treaty of Olympia (Treaty with the
Quinault), the Council recommended
and NMFS approved an allocation of
9,000 mt of sardine to the Quinault in
2012. NMFS will consult with Quinault
Department of Fisheries staff and
Quinault Fisheries Policy
representatives on or near September 1,
2012 to review Quinault catch to-date,
Oregon and Washington catch to-date
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 unused portion of the 2012
Quinault Pacific sardine set-aside of
9,000 mt can be moved into the nontribal third period allocation that begins
September 15.
Detailed information on the fishery
and the stock assessment are found in
the report ‘‘Assessment of the Pacific
Sardine Resource in 2011 for U.S.
Management in 2012’’ (see ADDRESSES).
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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.
For the 2012 Pacific sardine fishing
season, the incidental set asides and
adjusted directed harvest levels for each
period are shown in the following table
in metric tons:
July 1–
September 14
34,093
(35%)
1,000
33,093
47319
September 15–
December 31
38,964
(40%)
1,000
37,964
24,352
(25%)
1,000
23,352
Total
97,409
3,000
94,409
Comments and Responses
On April 3, 2012 NMFS published a
proposed rule for this action and
solicited public comments (77 FR
19991). NMFS received two comments
from one commenter regarding the
Pacific sardine annual specifications.
Comment 1: The commenter
requested that the proposed action be
disapproved because the harvest
guideline (HG) control rule does not
reflect the best available science for
setting catch levels and results in a
catch level that is too risky, fails to
prevent overfishing, and does not
account for the role of sardine as forage.
As such, the commenter recommends a
different approach to setting the catch
level referring extensively to a report by
the Lenfest Forage Fish Task Force. This
report recommends that the fishing
mortality rate for forage species be set at
one-half the species’ natural mortality
rate, a rate said to have been
traditionally used in some forage
fisheries as a proxy for fishing at MSY
(FMSY). The commenter references the
Lenfest Report and a July 2011 article in
the journal Science to suggest the
harvest guideline should be set at 1⁄2 of
FMSY, but does not offer a specific
suggestion for determining FMSY; the
commenter then cites an FMSY rate of
0.12 pulled from modeling conducted
for Amendment 8 to the CPS FMP and
an FMSY rate of 0.18 developed through
modeling as part of the 2011 sardine
stock assessment. The comment also
states that the best available information
is not being used for the FRACTION
parameter of the HG control rule and
that the DISTRIBUTION parameter does
not reflect current catch levels.
Response: To the extent this comment
is directed to the setting of 2012 Pacific
sardine ACL, HG, and associated annual
reference points based on the HG
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control rule and ABC control rule of the
FMP, the 2012 specifications are based
on the best available science. As
explained above under SUPPLEMENTARY
INFORMATION, this year’s biomass
estimate used to establish the 2012
specifications went through extensive
review and along with the resulting OFL
and ABC, was endorsed by the Council’s
SSC and NMFS as the best available
science. Disapproving this action, as
requested by the commenter, would
allow the fishery to take place without
any HG or quota. The HG and seasonal
allocations being put in place by this
action are important for preventing
overfishing and managing the fishery at
a level that will achieve optimum yield
while allowing all sectors of the Pacific
sardine fishery fair and equitable
opportunities to harvest the resource. To
the extent that the comment is directed
at the HG control rule established in
Amendment 8 to the CPS FMP, this
rulemaking is not intended to revise the
parameters of the existing HG control
rule, and so the comment is beyond the
scope of this rulemaking.
Although reconsideration of the
existing HG control rule is beyond the
scope of this rulemaking, NMFS will
respond to some aspects of the comment
that relate to the HG control rule itself,
such as the FRACTION and
DISTRIBUTION parameters. 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 in
the FMP. This framework includes a
harvest control rule established by
Amendment 8 to the FMP, and
continued in Amendment 13, that
determines the maximum HG, the
primary management target for the
fishery, for the current fishing season
(HGs are operationally similar to annual
catch targets) based on the current year’s
estimated biomass.
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 takes into account Pacific
sardine’s ecological role as forage. The
current harvest control established in
Amendment 8, developed after 15
public meetings, was chosen from a
wide range of FMP harvest policies
based on analysis of a variety of
measures of performance. Of these
performance measures, or OY
considerations, six were chosen as
priority considerations for determining
which harvest policy to choose; three
related specifically to sardine’s role as
forage in the California Current
ecosystem, and three stemmed from an
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interest in maintaining a predictable
and constant flow of catch and revenues
over the long term. The current harvest
policy was chosen because it is the most
precautionary as related to conserving
sardine as forage, while still providing
long-term consistent fishing yields for
the fishing industry, ultimately resulting
in OY over the long term.
Thus, the HG control rule includes a
variety of OY considerations as well as
explicit precautions intended to prevent
the stock from becoming overfished,
prevent overfishing and continuously
reduce harvest levels as biomass
decreases (low harvest fraction and a
150,000 mt threshold below which
fishing is prohibited). These
considerations and precautions are
based on the environmentally driven
dynamic nature of the Pacific sardine
stock as well as its importance in the
ecosystem as forage for other species.
The outcome of this control rule are
catch levels more conservative than
MSY-based management strategies
(OFL/ABC), because the focus for CPS
management is oriented primarily
towards biomass versus catch, leaving
adequate forage in the ocean and
maintaining long-term, consistent catch
levels for the fishing industry.
Due to past shifts in sardine
productivity being linked with warm or
cold ocean regimes, the CPS FMP uses
a correlation between Scripps Pier sea
surface temperature and sardine
productivity to determine the
FRACTION parameter of the HG rule.
Recent work has shown that the strength
of the direct correlation between
Scripps Pier sea surface temperature
and sardine productivity is likely not as
strong or defined as previously thought.
However, this work did not infer that
there was no relationship between
sardine productivity and the physical
environment (including ocean
temperature). It is well established that
environmental forcing plays a strong
role in Pacific sardine recruitment, with
temperature likely being an important
factor. However, NOAA recognizes that
based on this recent work showing that
the explicit relationship underlying the
harvest FRACTION parameter may not
be as strong as previously thought, it
should be reassessed. To that end, the
Council is planning a future workshop
to determine what key fishery
management parameters, such as FMSY
or components of the HG control rule,
in particular the temperature-based
harvest FRACTION, should be reviewed
and/or revised. Until the review process
is completed, however, NOAA still
considers the current control rule as the
best available science for setting harvest
levels for Pacific sardine. Additionally,
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on its own, a FRACTION at 15 percent
would be considered conservative based
on the below discussion of fishing
mortality rates, but when used in
concert with the other formula
parameters it is particularly cautious.
Fifteen percent is also less than the
FMSY of 18 percent used in the OFL and
ABC calculations, therefore adding
further protection to the stock.
With regard to the DISTRIBUTION
parameter of the sardine HG control
rule, which is also used in the MSY type
control rules (OFL and ABC), it is a
measure of the average ‘‘distribution’’ of
biomass for the northern subpopulation
of Pacific sardine, not ‘‘catch.’’ The
Distribution parameter is not intended
to reflect the proportion of coastwide
catch that Canada and Mexico actually
catch, or are entitled to catch. The HG
control rule was not developed with the
assumptions that the entire biomass is
readily available to the fleet, that there
are no other fishing restrictions, or that
U.S. fishing restrictions match those of
other countries. Obviously, these
assumptions are not correct. For
example the U.S. fishery was only open
for 83 days in 2011, while Mexico and
Canada were not bound by this
restriction. Additionally, the majority of
the sardine biomass typically is outside
the fishing area of the U.S. fleet, as
sardines occur up to 300 nautical miles
offshore and fisherman typically fish
within 5 miles from shore. Therefore,
the DISTRIBUTION factor is not
incorrect on the basis that it does not
reflect current catch levels between the
three countries that harvest the northern
subpopulation of Pacific sardine,
because it was never intended to reflect
catch levels. Additionally, due to
mixing of the southern and northern
subpopulations of Pacific sardine off of
northern Baja Mexico, a significant
amount of the Mexican catch referenced
by the commenter is actually from the
southern subpopulation of Pacific
sardine not the northern subpopulation;
only the northern subpopulation is
monitored and managed under the CPS
FMP.
Additionally, the commenter states
that the information used to develop the
current percentage used for the
Distribution parameter (87%) came from
data collected during low biomass years
and that it is a greater percentage then
was used by the State of California
(59%) to set the state quota in 1998.
Although it is correct that the State of
California used a distribution factor of
59% in setting California quotas in
1998, this proportion was based on a
regional biomass estimate that included
sardine only off the area between Baja
California and San Francisco. This 59%
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figure was probably a reasonable
estimate of the fraction of sardine
biomass in the region surveyed (the
southern distribution of the stock),
however the currently used 87% is
based on the entire distribution of the
stock which extends from the U.S./
Canada border to U.S./Mexico border).
Additionally, because the data used to
calculate the currently used 87% came
from low biomass years, this actually
results in an underestimate for years
with medium to high biomass.
With respect to the commenter’s
suggestion that catch levels should not
be set based on the existing HG control
rule but rather be set in accordance with
recommendations in the Lenfest Report,
it is illustrative to play out what this
might mean. The Lenfest Report
recommends that harvest be set at 1⁄2 the
natural mortality rate for forage species;
since the estimated natural mortality
rate for Pacific sardine is 0.4 of biomass,
therefore, based on the Lenfest
recommendation, the harvest rate for
Pacific sardine should be 0.2 of biomass.
Under the MSY control rule in the CPS
FMP, the FMSY for the sardine in 2012
is 0.18 (i.e. the OFL), which is a fishing
rate below 0.2, and the result of this
year’s HG control rule is well below this
rate at 0.11. Therefore, even if this
rulemaking included reconsideration of
the HG control rule itself, following the
1⁄2-natural-mortality recommendation
would be less precautionary than the
fishing level for 2012 under the HG
control rule of the CPS FMP. To further
highlight the current conservative
nature of the management in place for
Pacific sardine, due to the existing HG
control rule and other management
measures such as the 200,000 mt
maximum catch level in place, annual
fishing mortality rates can never exceed
.12. Second, NMFS also notes that there
is a very large difference (approximately
45,000 mt and 32,000 mt respectively)
between the higher OFL and ABC/ACL
levels and the lower HG catch level
(which is the maximum directed fishing
level) for the 2012 fishing year. The
lower HG is the result of OY
considerations and the management
strategy in the CPS FMP that limits
Pacific sardine to catch levels more
conservative than needed to simply
avoid overfishing as described under
National Standard 1 or a risk of
exceeding the ACL due to management
uncertainty.
The commenter’s recommendation to
use a static management approach
apparently does not include
precautionary parameters that account
for natural variability of the Pacific
sardine stock as does the HG formula of
the FMP. Furthermore, the commenter
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offered no clear standard for this
approach; instead, commenter
referenced an FMSY of 0.12 that
appeared in a table in the environmental
impact statement for Amendment 8 to
the CPS FMP; commenter also
references the estimated FMSY of 0.18
from a modeling exercise in Appendix
4 of the 2011 sardine stock assessment
prepared by the NMFS Southwest
Fisheries Science Center; the intent this
estimate was for use in the calculation
of OFL and intent of preventing
overfishing. Neither modeling exercise
was intended to result in an estimate of
actual FMSY in the context of the
recommendations presented by the
commenter.
NFMS recognizes that management of
trans-boundary stocks, such as Pacific
sardine, is one of the more difficult
issues in managing CPS. The current
approach in the CPS FMP sets sardine
harvest levels for U.S. fisheries by
prorating the biomass used to calculate
the target harvest level according to the
portion of the stock estimated to be in
U.S. waters on average over time. The
primary advantage of prorating the total
target harvest level is that U.S. fisheries
can be managed unilaterally in a
responsible manner that is consistent
with the MSA. Mexican and Canadian
landings are not considered explicitly
when harvest levels for U.S. waters are
determined. However, the allowable
harvest level in U.S. waters depends on
current biomass estimates, so U.S.
harvest will be reduced if the stock is
depleted by fishing in either Mexico or
Canada. Additionally, fishery data from
both Mexico and Canada is used in the
U.S. stock assessment to ensure the best
available information is used to assess
the stock. In practice, this approach is
similar to managing the U.S. and other
portions of a stock separately since
harvest for the U.S. fishery in a given
year depends ultimately on the biomass
in U.S. waters.
Prorating total harvest by the portion
in U.S. waters may not protect CPS
stocks against high combined U.S.,
Mexican and Canadian harvest, but
harvest in U.S. waters will
automatically decrease if biomass
decreases. In any given year, combined
harvest rates may be higher than
desirable, and biomass and fishery
yields may be reduced due to too much
fishing. However, the total exploitation
rate on the stock has averaged
approximately only 13% over the last 10
years and is currently about 14.5%. The
U.S. exploitation rate has averaged 7.6%
since 2000 and is currently about 6.6%.
Comment 2: The same commenter
also stated that an Environment Impact
Statement (EIS) should have been
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47321
prepared instead of an Environmental
Assessment (EA), the range of
alternatives analyzed in the EA was not
adequate, and alternative methods for
determining the annual specifications
should have been analyzed.
Specifically, the commenter suggested
that the EA should have analyzed the
setting of catch limits based one half of
FMSY, in addition to alternatives based
on the existing HG and ABC control
rules. In connection with their NEPA
comment, the commenter does not
indicate what FMSY would be. Based on
discussion in another part of the
comment letter, the commenter
apparently supports using an FMSY of
0.12 used in an (unselected) alternative
for the environmental analysis for
Amendment 8 to the CPS FMP or
perhaps an FMSY of 0.18 that was used
as part of the 2011 sardine stock
assessment.
Response: Regarding the comments
about the National Environmental
Policy Act (NEPA) analysis for this
action, the EA completed for this action
demonstrates that the implementation of
these annual catch levels for the Pacific
sardine fishery based on the HG and
ABC control rules in the FMP will not
significantly adversely impact the
quality of the human environment.
Therefore an EIS is not necessary to
comply with NEPA for this action.
With regard to the scope and range of
alternatives, the six alternatives
analyzed in the EA was a reasonable
number and covered an appropriate
scope based on the limited nature of this
action, which is the application of a set
formula in the FMP’s HG and ABC
control rules to determine harvest levels
of Pacific sardine for one year and the
allocation of that level between
allocation periods, with a set-aside for
an exempted fishing permit and an
Indian nation. The six alternatives
analyzed (including the proposed
action) were objectively evaluated in
recognition of the purpose and need of
this action and the framework process
in place based on the HG and ABC
control rules for setting catch levels for
Pacific sardine. The CPS FMP describes
a specific framework process for
annually setting required catch levels
and reference points. Within this
framework are specific control rules
used for determining the annual OFL,
ABC, ACL, and HG/ACT. Although
there is some flexibility built into this
process in terms of determinations of
scientific and management uncertainty,
there is little discretion in the control
rules for the OFL (level for determining
overfishing) and the HG (level at which
directed fishing is stopped), with the
annual biomass estimate being the
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Federal Register / Vol. 77, No. 153 / Wednesday, August 8, 2012 / Rules and Regulations
primary determinant in both these
levels. Therefore, the alternatives in the
EA covered a range of higher and lower
ABC and ACL levels in the context of
the OFL and HG levels.
With regard to the suggestion by the
commenter to analyze as an alternative
in this EA one-half FMSY (a static
percentage applied to the biomass
estimate) as the basis from which to set
the annual specifications, this would
not have been a pertinent alternative for
an EA on the 2012 annual
specifications. The annual
specifications implement the FMP,
which uses a harvest guideline control
rule with a specific, ecosystem-sensitive
formula. To analyze such an alternative
would have been outside the scope of
the rulemaking. The purpose of this EA
was to analyze alternative approaches to
implementing the existing FMP, not
alternatives for changing the FMP.
Furthermore, even if this were an EA
considering amendments to the existing
FMP, as stated above, fishery
management approaches for small
pelagic species based on equilibrium or
steady-state concepts, such as those
suggested by the commenter (i.e., MSY
or BMSY), which ignore natural
variability in abundance, are not the
most appropriate or reasonable and
therefore the current approach—which
accounts for natural variability—is used.
Although the commenter cites an FMSY
of 0.12 from an alternative not chosen
in the environmental impact statement
for Amendment 8 to the CPS FMP as
well as an FMSY of 0.18 from modeling
conducted as part of the 2011 sardine
stock assessment, neither value was
intended even in those documents to be
used as part of an actual static MSY
harvest strategy because biomass and
productivity of most CPS change in
response to environmental variability on
annual and decadal time scales. These
numbers were postulated as modeling
exercises, or for the sake of considering
a range of alternatives or other specific
purposes. The harvest strategy in the
FMP accounts for environmental
variability and requires annual
estimates of biomass rather than using a
static harvest strategy.
The commenter is welcome to
recommend that the Council and NMFS
amend the FMP to manage Pacific
sardine using a steady-state formula that
would not account for natural
fluctuations or conditions, but the EA
for the 2012 annual specifications was
not the appropriate place to conduct the
analysis of that alternative.
Classification
The Administrator, Southwest Region,
NMFS, determined that this action is
VerDate Mar<15>2010
13:48 Aug 07, 2012
Jkt 226001
necessary for the conservation and
management of the Pacific sardine
fishery and that it is consistent with the
Magnuson-Stevens Fishery
Conservation and Management Act and
other applicable laws.
NMFS finds good cause under 5
U.S.C. 553(d)(3) to waive the 30-day
delay in effectiveness for the
establishment of the harvest
specifications for the 2012 Pacific
sardine fishing season. For the reasons
set forth below, the immediate
implementation of this measure is
necessary for the conservation and
management of the Pacific sardine
resource. This rule establishes seasonal
harvest allocations and the ability to
restrict fishing when these allocations
are approached or reached. These
allocations are important mechanisms
in preventing overfishing and managing
the fishery at optimum yield while
allowing fair and equitable opportunity
to the resource by all sectors of the
Pacific sardine fishery. A delay in
effectiveness is likely to prevent the
ability to close the fishery when
necessary and cause the fishery to
exceed the second seasonal allocation.
The 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. Because the
directed harvest allocation for the
second allocation period is
approximately 30,000 mt greater than
the level in 2011, NMFS did not expect
that it would be necessary to close the
directed fishery prior to the start of the
third allocation period. However, based
on current landings information, which
are significantly higher than anticipated,
NMFS expects the directed fishery will
need to be closed during the current
allocation period, which began on July
1. Delaying the effective date of this rule
is contrary to the public interest because
additional reduction of Pacific sardine
beyond the incidental take limit set out
in this action would decrease the future
harvest limits, thereby reducing future
potential catch of the stock along with
the profits associated with those
harvests. Therefore, NMFS finds that
there is good cause to waive the 30-day
delay in effectiveness in this
circumstance. To help keep the
regulated community informed of this
final rule NMFS will also announce this
action through other means available,
including fax, email, and mail to
fishermen, processors, and state fishery
management agencies. Additionally,
NMFS will advise the CPS Advisory
PO 00000
Frm 00056
Fmt 4700
Sfmt 4700
Subpanel, which is comprised of
representatives from all sectors and
regions of the sardine industry,
including processors, fishermen, user
groups, conservation groups, and
fishermen association representatives, of
current landings as they become
available and for the public at-large also
post them on NMFS’ Southwest
Regional Office Web site, https://
swr.nmfs.noaa.gov/.
This final rule is exempt from Office
of Management and Budget 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 significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received regarding
this certification. As a result, a
regulatory flexibility analysis was not
required and none was prepared.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 3, 2012.
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. 2012–19419 Filed 8–7–12; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 100804324–1265–02]
RIN 0648–BC36
Magnuson-Stevens Act Provisions;
Fisheries Off West Coast States;
Biennial Specifications and
Management Measures; Inseason
Adjustments
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; inseason adjustments
to biennial groundfish management
measures.
AGENCY:
This final rule announces
inseason changes to management
measures in the Pacific Coast groundfish
fisheries. This action, which is
authorized by the Pacific Coast
SUMMARY:
E:\FR\FM\08AUR1.SGM
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Agencies
[Federal Register Volume 77, Number 153 (Wednesday, August 8, 2012)]
[Rules and Regulations]
[Pages 47318-47322]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19419]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 120312182-2239-02]
RIN 0648-XA882
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.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement the annual catch
limit (ACL), harvest 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, 2012,
through December 31, 2012. These specifications were determined
according to the Coastal Pelagic Species (CPS) Fishery Management Plan
(FMP). The 2012 maximum HG for Pacific sardine is 109,409 metric tons
(mt). The initial overall commercial fishing HG, that is to be
allocated across the three allocation periods for sardine management,
is 97,409 mt. This amount has been divided across the three seasonal
allocation periods for the directed fishery the following way: January
1-June 30--33,093 mt; July 1-September 14--37,964 mt; and September 15-
December 31--23,352 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: Effective August 8, 2012 through December 31, 2012.
FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, Southwest Region,
NMFS, (562) 980-4034.
SUPPLEMENTARY INFORMATION: During the Pacific Fishery Management
Council's (Council) annual public meetings, the NMFS Southwest
Fisheries Science Center presents the estimated biomass for Pacific
sardine to the Council's CPS Management Team (Team), the Council's CPS
Advisory Subpanel (Subpanel), the Council's Scientific and Statistical
Committee (SSC) and the Council. After the biomass and the status of
the fisheries are reviewed and discussed, the SSC and other advisory
bodies then provide the calculated overfishing limit (OFL), available
biological catch (ABC), ACL and ACT (and/or HG) recommendations.
Following review by the Council and after considering public comment,
the Council adopts a biomass estimate and makes its catch level
recommendations to NMFS.
After review of the Council's recommendations from the November
2011 Council meeting, NMFS implements in this rule the 2012 ACL, HG and
other annual catch reference points, including an 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. This level is
reduced from the Maximum Sustainable Yield/OFL level for economic and
ecological considerations. The HG is based, in large part, on the
current estimate of stock biomass for the northern subpopulation of
Pacific sardine. 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 988,385 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 northern subpopulation of the
Pacific sardine biomass estimated in the EEZ off the Pacific coast is
87 percent. This parameter is used to prorate the biomass used to
calculate the target harvest level to account for the transboundary
nature of the resource.
4. Fraction. The harvest fraction is the percentage of the biomass
above 150,000 mt that may be harvested.
At the November 2011 Council meeting, the Council adopted the 2012
assessment of the Pacific sardine resource and a Pacific sardine
biomass estimate of 988,385 mt. Based on recommendations from its SSC
and other advisory bodies, the Council recommended, and NMFS is
implementing, an overfishing limit of 154,781 mt, an acceptable
biological catch (ABC) of 141,289 mt, an annual catch limit of 141,289
mt (equal to the ABC) and a maximum harvest guideline (HG) (HGs under
the CPS FMP are
[[Page 47319]]
operationally similar to annual catch targets (ACT)) of 109,409 metric
tons (mt) for the 2012 Pacific sardine fishing year. 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 implementing,
establishment of an the initial overall commercial fishing HG of 97,409
mt Pacific sardine and allocation of that HG across the three
allocation periods. This number has been reduced from the maximum HG by
12,000 mt: (i) For potential harvest by the Quinault Indian Nation of
up to 9,000 mt; and (ii) 3,000 mt, which is initially reserved for
potential use under an exempted fishing permit(s) (EFPs). Additionally,
incidental catch set asides are 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.
For the 2012 Pacific sardine fishing season, the incidental set
asides and adjusted directed harvest levels for each period are shown
in the following table in metric tons:
----------------------------------------------------------------------------------------------------------------
January 1- June July 1- September 15-
30 September 14 December 31 Total
----------------------------------------------------------------------------------------------------------------
Total Seasonal Allocation................... 34,093 38,964 24,352 97,409
(35%) (40%) (25%)
Incidental Set Aside........................ 1,000 1,000 1,000 3,000
Adjusted Directed Harvest Allocation........ 33,093 37,964 23,352 94,409
----------------------------------------------------------------------------------------------------------------
Although the 2012 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 will be closed to directed 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 30 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, the incidental fishery will be closed for
the remainder of the period. If the set-aside is either not fully
attained or is exceeded in a given seasonal period, the directed
harvest allocation in the following seasonal period will automatically
be adjusted upward or downward accordingly to account for the
discrepancy. Additionally, if during any seasonal period the directed
harvest allocation is either not fully attained or is exceeded, then
the following period's directed harvest total will be adjusted to
account for the discrepancy, as well.
If the total HG or these apportionment levels for Pacific sardine
are reached or are expected to be reached, the Pacific sardine fishery
will 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 will publish a notice in the Federal Register announcing
the date of any such closure.
At the April 2012 Council meeting the Council approved and
subsequently made a recommendation to NMFS to approve an EFP for all of
the 3,000 mt EFP set-aside. 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, 2012). 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. In response to a request by
the Quinault Indian Nation for the exclusive right to harvest Pacific
sardine in 2012 in their Usual and Accustomed Fishing Area off the
coast of Washington State, pursuant to their rights to fish under the
1856 Treaty of Olympia (Treaty with the Quinault), the Council
recommended and NMFS approved an allocation of 9,000 mt of sardine to
the Quinault in 2012. NMFS will consult with Quinault Department of
Fisheries staff and Quinault Fisheries Policy representatives on or
near September 1, 2012 to review Quinault catch to-date, Oregon and
Washington catch to-date 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 unused
portion of the 2012 Quinault Pacific sardine set-aside of 9,000 mt can
be moved into the non-tribal third period allocation that begins
September 15.
Detailed information on the fishery and the stock assessment are
found in the report ``Assessment of the Pacific Sardine Resource in
2011 for U.S. Management in 2012'' (see ADDRESSES).
Comments and Responses
On April 3, 2012 NMFS published a proposed rule for this action and
solicited public comments (77 FR 19991). NMFS received two comments
from one commenter regarding the Pacific sardine annual specifications.
Comment 1: The commenter requested that the proposed action be
disapproved because the harvest guideline (HG) control rule does not
reflect the best available science for setting catch levels and results
in a catch level that is too risky, fails to prevent overfishing, and
does not account for the role of sardine as forage. As such, the
commenter recommends a different approach to setting the catch level
referring extensively to a report by the Lenfest Forage Fish Task
Force. This report recommends that the fishing mortality rate for
forage species be set at one-half the species' natural mortality rate,
a rate said to have been traditionally used in some forage fisheries as
a proxy for fishing at MSY (FMSY). The commenter references
the Lenfest Report and a July 2011 article in the journal Science to
suggest the harvest guideline should be set at \1/2\ of
FMSY, but does not offer a specific suggestion for
determining FMSY; the commenter then cites an
FMSY rate of 0.12 pulled from modeling conducted for
Amendment 8 to the CPS FMP and an FMSY rate of 0.18
developed through modeling as part of the 2011 sardine stock
assessment. The comment also states that the best available information
is not being used for the FRACTION parameter of the HG control rule and
that the DISTRIBUTION parameter does not reflect current catch levels.
Response: To the extent this comment is directed to the setting of
2012 Pacific sardine ACL, HG, and associated annual reference points
based on the HG
[[Page 47320]]
control rule and ABC control rule of the FMP, the 2012 specifications
are based on the best available science. As explained above under
SUPPLEMENTARY INFORMATION, this year's biomass estimate used to
establish the 2012 specifications went through extensive review and
along with the resulting OFL and ABC, was endorsed by the Council's SSC
and NMFS as the best available science. Disapproving this action, as
requested by the commenter, would allow the fishery to take place
without any HG or quota. The HG and seasonal allocations being put in
place by this action are important for preventing overfishing and
managing the fishery at a level that will achieve optimum yield while
allowing all sectors of the Pacific sardine fishery fair and equitable
opportunities to harvest the resource. To the extent that the comment
is directed at the HG control rule established in Amendment 8 to the
CPS FMP, this rulemaking is not intended to revise the parameters of
the existing HG control rule, and so the comment is beyond the scope of
this rulemaking.
Although reconsideration of the existing HG control rule is beyond
the scope of this rulemaking, NMFS will respond to some aspects of the
comment that relate to the HG control rule itself, such as the FRACTION
and DISTRIBUTION parameters. 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 in the FMP.
This framework includes a harvest control rule established by Amendment
8 to the FMP, and continued in Amendment 13, that determines the
maximum HG, the primary management target for the fishery, for the
current fishing season (HGs are operationally similar to annual catch
targets) based on the current year's estimated biomass.
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 takes into
account Pacific sardine's ecological role as forage. The current
harvest control established in Amendment 8, developed after 15 public
meetings, was chosen from a wide range of FMP harvest policies based on
analysis of a variety of measures of performance. Of these performance
measures, or OY considerations, six were chosen as priority
considerations for determining which harvest policy to choose; three
related specifically to sardine's role as forage in the California
Current ecosystem, and three stemmed from an interest in maintaining a
predictable and constant flow of catch and revenues over the long term.
The current harvest policy was chosen because it is the most
precautionary as related to conserving sardine as forage, while still
providing long-term consistent fishing yields for the fishing industry,
ultimately resulting in OY over the long term.
Thus, the HG control rule includes a variety of OY considerations
as well as explicit precautions intended to prevent the stock from
becoming overfished, prevent overfishing and continuously reduce
harvest levels as biomass decreases (low harvest fraction and a 150,000
mt threshold below which fishing is prohibited). These considerations
and precautions are based on the environmentally driven dynamic nature
of the Pacific sardine stock as well as its importance in the ecosystem
as forage for other species. The outcome of this control rule are catch
levels more conservative than MSY-based management strategies (OFL/
ABC), because the focus for CPS management is oriented primarily
towards biomass versus catch, leaving adequate forage in the ocean and
maintaining long-term, consistent catch levels for the fishing
industry.
Due to past shifts in sardine productivity being linked with warm
or cold ocean regimes, the CPS FMP uses a correlation between Scripps
Pier sea surface temperature and sardine productivity to determine the
FRACTION parameter of the HG rule. Recent work has shown that the
strength of the direct correlation between Scripps Pier sea surface
temperature and sardine productivity is likely not as strong or defined
as previously thought. However, this work did not infer that there was
no relationship between sardine productivity and the physical
environment (including ocean temperature). It is well established that
environmental forcing plays a strong role in Pacific sardine
recruitment, with temperature likely being an important factor.
However, NOAA recognizes that based on this recent work showing that
the explicit relationship underlying the harvest FRACTION parameter may
not be as strong as previously thought, it should be reassessed. To
that end, the Council is planning a future workshop to determine what
key fishery management parameters, such as FMSY or
components of the HG control rule, in particular the temperature-based
harvest FRACTION, should be reviewed and/or revised. Until the review
process is completed, however, NOAA still considers the current control
rule as the best available science for setting harvest levels for
Pacific sardine. Additionally, on its own, a FRACTION at 15 percent
would be considered conservative based on the below discussion of
fishing mortality rates, but when used in concert with the other
formula parameters it is particularly cautious. Fifteen percent is also
less than the FMSY of 18 percent used in the OFL and ABC
calculations, therefore adding further protection to the stock.
With regard to the DISTRIBUTION parameter of the sardine HG control
rule, which is also used in the MSY type control rules (OFL and ABC),
it is a measure of the average ``distribution'' of biomass for the
northern subpopulation of Pacific sardine, not ``catch.'' The
Distribution parameter is not intended to reflect the proportion of
coastwide catch that Canada and Mexico actually catch, or are entitled
to catch. The HG control rule was not developed with the assumptions
that the entire biomass is readily available to the fleet, that there
are no other fishing restrictions, or that U.S. fishing restrictions
match those of other countries. Obviously, these assumptions are not
correct. For example the U.S. fishery was only open for 83 days in
2011, while Mexico and Canada were not bound by this restriction.
Additionally, the majority of the sardine biomass typically is outside
the fishing area of the U.S. fleet, as sardines occur up to 300
nautical miles offshore and fisherman typically fish within 5 miles
from shore. Therefore, the DISTRIBUTION factor is not incorrect on the
basis that it does not reflect current catch levels between the three
countries that harvest the northern subpopulation of Pacific sardine,
because it was never intended to reflect catch levels. Additionally,
due to mixing of the southern and northern subpopulations of Pacific
sardine off of northern Baja Mexico, a significant amount of the
Mexican catch referenced by the commenter is actually from the southern
subpopulation of Pacific sardine not the northern subpopulation; only
the northern subpopulation is monitored and managed under the CPS FMP.
Additionally, the commenter states that the information used to
develop the current percentage used for the Distribution parameter
(87%) came from data collected during low biomass years and that it is
a greater percentage then was used by the State of California (59%) to
set the state quota in 1998. Although it is correct that the State of
California used a distribution factor of 59% in setting California
quotas in 1998, this proportion was based on a regional biomass
estimate that included sardine only off the area between Baja
California and San Francisco. This 59%
[[Page 47321]]
figure was probably a reasonable estimate of the fraction of sardine
biomass in the region surveyed (the southern distribution of the
stock), however the currently used 87% is based on the entire
distribution of the stock which extends from the U.S./Canada border to
U.S./Mexico border). Additionally, because the data used to calculate
the currently used 87% came from low biomass years, this actually
results in an underestimate for years with medium to high biomass.
With respect to the commenter's suggestion that catch levels should
not be set based on the existing HG control rule but rather be set in
accordance with recommendations in the Lenfest Report, it is
illustrative to play out what this might mean. The Lenfest Report
recommends that harvest be set at \1/2\ the natural mortality rate for
forage species; since the estimated natural mortality rate for Pacific
sardine is 0.4 of biomass, therefore, based on the Lenfest
recommendation, the harvest rate for Pacific sardine should be 0.2 of
biomass. Under the MSY control rule in the CPS FMP, the FMSY
for the sardine in 2012 is 0.18 (i.e. the OFL), which is a fishing rate
below 0.2, and the result of this year's HG control rule is well below
this rate at 0.11. Therefore, even if this rulemaking included
reconsideration of the HG control rule itself, following the \1/2\-
natural-mortality recommendation would be less precautionary than the
fishing level for 2012 under the HG control rule of the CPS FMP. To
further highlight the current conservative nature of the management in
place for Pacific sardine, due to the existing HG control rule and
other management measures such as the 200,000 mt maximum catch level in
place, annual fishing mortality rates can never exceed .12. Second,
NMFS also notes that there is a very large difference (approximately
45,000 mt and 32,000 mt respectively) between the higher OFL and ABC/
ACL levels and the lower HG catch level (which is the maximum directed
fishing level) for the 2012 fishing year. The lower HG is the result of
OY considerations and the management strategy in the CPS FMP that
limits Pacific sardine to catch levels more conservative than needed to
simply avoid overfishing as described under National Standard 1 or a
risk of exceeding the ACL due to management uncertainty.
The commenter's recommendation to use a static management approach
apparently does not include precautionary parameters that account for
natural variability of the Pacific sardine stock as does the HG formula
of the FMP. Furthermore, the commenter offered no clear standard for
this approach; instead, commenter referenced an FMSY of 0.12
that appeared in a table in the environmental impact statement for
Amendment 8 to the CPS FMP; commenter also references the estimated
FMSY of 0.18 from a modeling exercise in Appendix 4 of the
2011 sardine stock assessment prepared by the NMFS Southwest Fisheries
Science Center; the intent this estimate was for use in the calculation
of OFL and intent of preventing overfishing. Neither modeling exercise
was intended to result in an estimate of actual FMSY in the
context of the recommendations presented by the commenter.
NFMS recognizes that management of trans-boundary stocks, such as
Pacific sardine, is one of the more difficult issues in managing CPS.
The current approach in the CPS FMP sets sardine harvest levels for
U.S. fisheries by prorating the biomass used to calculate the target
harvest level according to the portion of the stock estimated to be in
U.S. waters on average over time. The primary advantage of prorating
the total target harvest level is that U.S. fisheries can be managed
unilaterally in a responsible manner that is consistent with the MSA.
Mexican and Canadian landings are not considered explicitly when
harvest levels for U.S. waters are determined. However, the allowable
harvest level in U.S. waters depends on current biomass estimates, so
U.S. harvest will be reduced if the stock is depleted by fishing in
either Mexico or Canada. Additionally, fishery data from both Mexico
and Canada is used in the U.S. stock assessment to ensure the best
available information is used to assess the stock. In practice, this
approach is similar to managing the U.S. and other portions of a stock
separately since harvest for the U.S. fishery in a given year depends
ultimately on the biomass in U.S. waters.
Prorating total harvest by the portion in U.S. waters may not
protect CPS stocks against high combined U.S., Mexican and Canadian
harvest, but harvest in U.S. waters will automatically decrease if
biomass decreases. In any given year, combined harvest rates may be
higher than desirable, and biomass and fishery yields may be reduced
due to too much fishing. However, the total exploitation rate on the
stock has averaged approximately only 13% over the last 10 years and is
currently about 14.5%. The U.S. exploitation rate has averaged 7.6%
since 2000 and is currently about 6.6%.
Comment 2: The same commenter also stated that an Environment
Impact Statement (EIS) should have been prepared instead of an
Environmental Assessment (EA), the range of alternatives analyzed in
the EA was not adequate, and alternative methods for determining the
annual specifications should have been analyzed. Specifically, the
commenter suggested that the EA should have analyzed the setting of
catch limits based one half of FMSY, in addition to
alternatives based on the existing HG and ABC control rules. In
connection with their NEPA comment, the commenter does not indicate
what FMSY would be. Based on discussion in another part of
the comment letter, the commenter apparently supports using an
FMSY of 0.12 used in an (unselected) alternative for the
environmental analysis for Amendment 8 to the CPS FMP or perhaps an
FMSY of 0.18 that was used as part of the 2011 sardine stock
assessment.
Response: Regarding the comments about the National Environmental
Policy Act (NEPA) analysis for this action, the EA completed for this
action demonstrates that the implementation of these annual catch
levels for the Pacific sardine fishery based on the HG and ABC control
rules in the FMP will not significantly adversely impact the quality of
the human environment. Therefore an EIS is not necessary to comply with
NEPA for this action.
With regard to the scope and range of alternatives, the six
alternatives analyzed in the EA was a reasonable number and covered an
appropriate scope based on the limited nature of this action, which is
the application of a set formula in the FMP's HG and ABC control rules
to determine harvest levels of Pacific sardine for one year and the
allocation of that level between allocation periods, with a set-aside
for an exempted fishing permit and an Indian nation. The six
alternatives analyzed (including the proposed action) were objectively
evaluated in recognition of the purpose and need of this action and the
framework process in place based on the HG and ABC control rules for
setting catch levels for Pacific sardine. The CPS FMP describes a
specific framework process for annually setting required catch levels
and reference points. Within this framework are specific control rules
used for determining the annual OFL, ABC, ACL, and HG/ACT. Although
there is some flexibility built into this process in terms of
determinations of scientific and management uncertainty, there is
little discretion in the control rules for the OFL (level for
determining overfishing) and the HG (level at which directed fishing is
stopped), with the annual biomass estimate being the
[[Page 47322]]
primary determinant in both these levels. Therefore, the alternatives
in the EA covered a range of higher and lower ABC and ACL levels in the
context of the OFL and HG levels.
With regard to the suggestion by the commenter to analyze as an
alternative in this EA one-half FMSY (a static percentage
applied to the biomass estimate) as the basis from which to set the
annual specifications, this would not have been a pertinent alternative
for an EA on the 2012 annual specifications. The annual specifications
implement the FMP, which uses a harvest guideline control rule with a
specific, ecosystem-sensitive formula. To analyze such an alternative
would have been outside the scope of the rulemaking. The purpose of
this EA was to analyze alternative approaches to implementing the
existing FMP, not alternatives for changing the FMP.
Furthermore, even if this were an EA considering amendments to the
existing FMP, as stated above, fishery management approaches for small
pelagic species based on equilibrium or steady-state concepts, such as
those suggested by the commenter (i.e., MSY or BMSY), which
ignore natural variability in abundance, are not the most appropriate
or reasonable and therefore the current approach--which accounts for
natural variability--is used. Although the commenter cites an
FMSY of 0.12 from an alternative not chosen in the
environmental impact statement for Amendment 8 to the CPS FMP as well
as an FMSY of 0.18 from modeling conducted as part of the
2011 sardine stock assessment, neither value was intended even in those
documents to be used as part of an actual static MSY harvest strategy
because biomass and productivity of most CPS change in response to
environmental variability on annual and decadal time scales. These
numbers were postulated as modeling exercises, or for the sake of
considering a range of alternatives or other specific purposes. The
harvest strategy in the FMP accounts for environmental variability and
requires annual estimates of biomass rather than using a static harvest
strategy.
The commenter is welcome to recommend that the Council and NMFS
amend the FMP to manage Pacific sardine using a steady-state formula
that would not account for natural fluctuations or conditions, but the
EA for the 2012 annual specifications was not the appropriate place to
conduct the analysis of that alternative.
Classification
The Administrator, Southwest Region, NMFS, determined that this
action is necessary for the conservation and management of the Pacific
sardine fishery and that it is consistent with the Magnuson-Stevens
Fishery Conservation and Management Act and other applicable laws.
NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effectiveness for the establishment of the harvest
specifications for the 2012 Pacific sardine fishing season. For the
reasons set forth below, the immediate implementation of this measure
is necessary for the conservation and management of the Pacific sardine
resource. This rule establishes seasonal harvest allocations and the
ability to restrict fishing when these allocations are approached or
reached. These allocations are important mechanisms in preventing
overfishing and managing the fishery at optimum yield while allowing
fair and equitable opportunity to the resource by all sectors of the
Pacific sardine fishery. A delay in effectiveness is likely to prevent
the ability to close the fishery when necessary and cause the fishery
to exceed the second seasonal allocation. The 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. Because the directed harvest allocation for
the second allocation period is approximately 30,000 mt greater than
the level in 2011, NMFS did not expect that it would be necessary to
close the directed fishery prior to the start of the third allocation
period. However, based on current landings information, which are
significantly higher than anticipated, NMFS expects the directed
fishery will need to be closed during the current allocation period,
which began on July 1. Delaying the effective date of this rule is
contrary to the public interest because additional reduction of Pacific
sardine beyond the incidental take limit set out in this action would
decrease the future harvest limits, thereby reducing future potential
catch of the stock along with the profits associated with those
harvests. Therefore, NMFS finds that there is good cause to waive the
30-day delay in effectiveness in this circumstance. To help keep the
regulated community informed of this final rule NMFS will also announce
this action through other means available, including fax, email, and
mail to fishermen, processors, and state fishery management agencies.
Additionally, NMFS will advise the CPS Advisory Subpanel, which is
comprised of representatives from all sectors and regions of the
sardine industry, including processors, fishermen, user groups,
conservation groups, and fishermen association representatives, of
current landings as they become available and for the public at-large
also post them on NMFS' Southwest Regional Office Web site, https://swr.nmfs.noaa.gov/.
This final rule is exempt from Office of Management and Budget
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 significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here.
No comments were received regarding this certification. As a
result, a regulatory flexibility analysis was not required and none was
prepared.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 3, 2012.
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. 2012-19419 Filed 8-7-12; 8:45 am]
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