Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications, 31222-31226 [2019-13960]
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Federal Register / Vol. 84, No. 126 / Monday, July 1, 2019 / Rules and Regulations
policies and procedures of the
Department, the term ‘‘categorical
exclusion’’ means a category of actions
which do not individually or
cumulatively have a significant effect on
the human environment and which
have been found to have no such effect
on procedures adopted by a Federal
agency and for which, therefore, neither
an environmental assessment nor an
environmental impact statement is
required.
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not a significant energy
action. It will not have an adverse effect
on energy supplies. To the extent that
the rule affects the mining of energy
minerals (i.e., uranium and other
Author
The principal author of this final rule
is Elaine Guenaga in the Solid Minerals
Group assisted by the Division of
Regulatory Affairs, Washington Office,
BLM.
List of Subjects in 43 CFR Part 3830
Mines; Public lands—mineral
resources; Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, the BLM amends 43 CFR part
3830 as follows:
PART 3830—LOCATING, RECORDING,
AND MAINTAINING MINING CLAIMS
OR SITES; GENERAL PROVISIONS
1. The authority citation for part 3830
continues to read as follows:
■
Authority: 18 U.S.C. 1001, 3571; 30 U.S.C.
22, 28, 28k, 242, 611; 31 U.S.C. 9701; 43
U.S.C. 2, 1201, 1212, 1457, 1474, 1740, 1744;
115 Stat. 414; Pub. L. 112–74, 125 Stat. 786.
Subpart D—BLM Service Charge and
Fee Requirements
2. Amend § 3830.21 by revising
paragraphs (a) and (d) of the table to
read as follows:
■
§ 3830.21 What are the different types of
service charges and fees?
*
*
*
*
*
Transaction
Amount due per mining claim or site
(a) Recording a mining claim or site location (part 3833) ..
A total sum which includes:
(1) The processing fee for notices of location found in the
fee schedule in § 3000.12 of this chapter;.
(2) A one-time $40 location fee; and
(3)(i) For lode claims, mill sites and tunnel sites, an initial
$165 maintenance fee; or
(ii) For placer claims, an initial $165 maintenance fee for
each 20 acres of the placer claim or portion thereof.
No.
*
*
*
(d) Maintaining a mining claim or site for one assessment
year (part 3834).
*
*
*
(1) For lode claims, mill sites and tunnel sites, an annual
maintenance fee of $165 must be paid on or before
September 1 each year.
(2) For placer claims, a $165 annual maintenance fee for
each 20 acres of the placer claim or portion thereof
must be paid on or before September 1 each year.
*
Yes. See part 3835.
*
*
*
Dated: June 24, 2019.
Joseph R. Balash,
Assistant Secretary, Land and Minerals
Management.
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 190409351–9512–02]
RIN 0648–XG972
Fisheries Off West Coast States;
Coastal Pelagic Species Fisheries;
Annual Specifications
Jkt 247001
Effective July 1, 2019, through
June 30, 2020.
FOR FURTHER INFORMATION CONTACT:
Lynn Massey, West Coast Region,
NMFS, (562) 436–2462, lynn.massey@
noaa.gov.
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NMFS
manages the Pacific sardine fishery in
the U.S. exclusive economic zone (EEZ)
off the Pacific Coast (California, Oregon,
and Washington) in accordance with the
Coastal Pelagic Species (CPS) Fishery
Management Plan (FMP). The FMP and
its implementing regulations require
NMFS to set annual catch levels for the
Pacific sardine fishery based on the
annual specification framework and
control rules in the FMP. These control
rules include the harvest guideline (HG)
control rule, which, in conjunction with
the overfishing limit (OFL) and
acceptable biological catch (ABC) rules
in the FMP, are used to manage harvest
levels for Pacific sardine, in accordance
with the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act), 16 U.S.C. 1801
et seq.
This final rule implements the annual
catch levels and reference points for the
2019–2020 fishing year. The final rule
SUPPLEMENTARY INFORMATION:
DATES:
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
15:54 Jun 28, 2019
Final rule.
NMFS issues this final rule to
implement annual management
measures and catch limits for the
northern subpopulation of Pacific
sardine for the fishing year from July 1,
2019, through June 30, 2020. This action
prohibits directed commercial fishing
for Pacific sardine off the U.S. Pacific
Coast, except in the live bait or minor
directed fisheries, or as part of
exempted fishing permit activities, and
establishes limits on the incidental
harvest of Pacific sardine in other
fisheries. This action is intended to
conserve and manage the Pacific sardine
stock off the U.S. West Coast.
DEPARTMENT OF COMMERCE
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SUMMARY:
BILLING CODE 4310–84–P
AGENCY:
*
ACTION:
[FR Doc. 2019–13963 Filed 6–28–19; 8:45 am]
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fissionable metals), the rule applies only
a statutory adjustment of the mining
claim location and maintenance fees
that the BLM has been collecting for
many years. It will not significantly
change financial obligations of the
mining industry.
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Federal Register / Vol. 84, No. 126 / Monday, July 1, 2019 / Rules and Regulations
adopts, without changes, the catch
levels and restrictions that NMFS
proposed in the rule published on May
28, 2019 (84 FR 24459), including the
OFL and ABC that take into
consideration uncertainty surrounding
the current estimate of biomass for
Pacific sardine in the U.S. EEZ off the
U.S. Pacific Coast. The proposed rule for
this action included additional
background on specifications and the
details of how the Pacific Fishery
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Management Council (Council) derived
its recommended specifications for
Pacific sardine. Those details are not
repeated here. For additional
information, please refer to the
proposed rule for this action.
TABLE 1—REFERENCE POINTS FOR THE 2019–2020 SARDINE FISHING YEAR IN METRIC TONS
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[mt]
Biomass estimate
OFL
ABC
HG
ACL
ACT
27,547 ..................................................................................
5,816
4,514
0
4,514
4,000
This final rule implements an OFL of
5,816 mt, an ABC and ACL of 4,514 mt,
and allows Pacific sardine catch only for
live bait, in a minor directed fishery, as
incidental catch in other fisheries, or
under an exempted fishing permit
(EFP). Additionally, this rule
implements an annual catch target
(ACT) of 4,000 mt, as well as restrictions
on the incidental catch of Pacific
sardine by other fisheries and a trip
limit that could be imposed on directed
fishing for sardine as live bait.
For the first time, the estimated
biomass for Pacific sardine has fallen
below the 50,000-mt minimum stock
size threshold (MSST) defined in the
CPS FMP, which requires NMFS to
initiate a process to declare the Pacific
sardine stock overfished. Although
NMFS has not officially determined the
stock to be overfished, the Council made
recommendations for the 2019–2020
Pacific sardine harvest specifications in
anticipation of NMFS making such a
determination in the near future. The
CPS FMP previously required that when
a CPS stock is overfished, live bait
landings of that stock be restricted to
only incidental catch up to 15 percent
of total CPS on board. However, on June
10, 2019, NMFS approved Amendment
17 to the CPS FMP, which removed this
pre-specified limit on fishing for live
bait of a CPS stock that is overfished.
Because Amendment 17 was still under
Secretarial review at the April 2019
Council meeting, the Council
recommended management measures
for the 2019–2020 sardine fishing year
that matched the status quo FMP
provisions (i.e., no directed live bait for
overfished stocks and 15 percent
maximum incidental limit on live bait
for overfished stocks) but also stated its
desire to use the provision of
Amendment 17 (i.e., allow directed live
bait for overfished stocks with no
predetermined limits) if it is approved.
Because NMFS approved Amendment
17, directed live bait fishing for sardine
will be permitted for the 2019–2020
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fishing year per the Council’s
recommendation.
The final specifications include the
following management measures and
inseason accountability measures for
commercial sardine harvest during the
2019–2020 fishing year:
(1) Directed live bait fishing is
allowed, subject to the accountability
measure specified under number 2
below.
(2) If landings by the live bait fishery
reach 2,500 mt, NMFS will impose a 1mt trip limit on retention of sardine in
the live bait fishery.
(3) A 20-percent incidental per
landing by weight catch allowance will
be applied to other CPS primary
directed commercial fisheries (e.g.,
Pacific mackerel).
(4) A 2-mt per trip incidental catch
allowance will apply to non-CPS
fisheries.
(5) If the ACT of 4,000 mt is harvested
by all fishing sectors combined, NMFS
will impose a 1-mt trip limit on sardine
caught as live bait, and a 1-mt trip limit
on incidentally-caught sardine when
caught while targeting other CPS.
All sources of catch, including any
EFP set-asides, the live bait fishery, and
other minimal sources of harvest, such
as incidental catch in CPS and non-CPS
fisheries, and minor directed fishing,
will be counted against the ACL.
The NMFS West Coast Regional
Administrator will publish a notice in
the Federal Register to announce when
catch reaches the incidental limits as
well as any changes to allowable
incidental catch percentages.
Additionally, to ensure that the
regulated community is informed of any
closure, NMFS will make
announcements through other means,
including emails to fishermen,
processors, and state fishery
management agencies.
As explained in the proposed rule, the
Quinault Indian Nation did not request
a tribal set-aside for the 2019–2020
fishing year and therefore no set-aside
was established and none is accounted
for under the ACL.
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At the April 2019 meeting, the
Council also voted in support of two
EFP proposals that would exempt the
permit holders from the prohibition on
direct harvest of Pacific sardine. The
ACT and ACL were formulated with the
assumption that up to 405 mt of Pacific
sardine would be harvested under these
two EFPs.
On May 28, 2019, NMFS published a
proposed rule for this action and
solicited public comments (84 FR
24459) through June 12, 2018. NMFS
received two public comment letters—
one from the CPS industry group
California Wetfish Producers
Association (CWPA), and one from the
environmental advocacy organization
Oceana. Both comment letters included
multiple comments, including some
comments that were beyond the scope
of this rulemaking. After considering
both public comments, no changes were
made from the proposed rule. NMFS
summarizes and responds to the
comment letters below.
Comments and Responses
Comment 1: The CWPA stated that it
disagrees with the determination made
for this rule by the Chief Counsel for
Regulation of the Department of
Commerce under the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601 et
seq., which concluded that the 2019–
2020 proposed harvest specifications
and management measures would not
have a significant economic impact on
a substantial number of small entities.
The commenter’s primary objection to
the determination is that the proposed
action would significantly reduce profit
for a substantial number of small
entities, and specifically that the
proposed 20-percent incidental landing
allowance of Pacific sardine in other
CPS directed fisheries would have a
significant impact on the affected
entities.
Response: As stated in the proposed
rule, the annual HG is the main tool
used to manage the principal
commercial sardine fishery and is the
harvest level NMFS typically uses for
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Federal Register / Vol. 84, No. 126 / Monday, July 1, 2019 / Rules and Regulations
profitability analysis. For the purposes
of profitability analysis, this final rule
implements an HG of zero for the 2019–
2020 Pacific sardine fishing season (July
1, 2019, through June 30, 2020).
Likewise, the HG for the previous 3
fishing years was also set at zero,
thereby prohibiting the primary
commercial directed Pacific sardine
fishery. Therefore, NMFS determined
that this rule will not change the
potential profitability compared to
recent fishing years for the primary
commercial fishery for Pacific sardine.
In addition to the primary commercial
fishery, NMFS recognized that this
action also affects other fisheries for
Pacific sardine such as live bait and
minor directed fisheries, as well as other
CPS fisheries that incidentally catch
Pacific sardine. NMFS also determined
that the proposed action will not
significantly reduce the profitability of
those fisheries compared to previous
years. Specifically, the various directed
and incidental catch allowances, such
as the maximum allowed incidental
catch rate of 20 percent, and other
inseason management measures in this
rule, are intended to not only help
prevent overfishing but also ensure, to
the extent practicable, maximum access
to Pacific sardine throughout the fishing
year for these other fishery sectors.
Regarding the commenter’s objection
to setting the incidental landing
allowance at 20 percent, NMFS notes
that the FMP requires that the incidental
catch allowance for an overfished CPS
stock be set between 0 and 20 percent
of the landed weight of the target stock.
Therefore, the incidental catch
allowances for other CPS fisheries
cannot be higher than 20 percent.
According to the CPS FMP, Pacific
sardine is in an overfished condition
when its biomass is below 50,000 mt.
The 2019 Pacific sardine stock
assessment, which has been determined
to be the best scientific information
available for setting the 2019–2020
harvest specifications, shows that
Pacific sardine biomass is below this
level. Although NMFS has not officially
determined the stock to be overfished,
the Council recognized that NMFS
would likely declare the stock
overfished in the upcoming several
months, and accordingly recommended
an incidental allowance limit within
this 0 to 20 percent range during the
April meeting when the Council makes
decisions about annual Pacific sardine
specifications for the season that starts
the following July. The only alternative
to the 20-percent incidental allowance
would have been a lower incidental
allowance. For this reason,
implementing a 20-percent incidental
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allowance has the lowest possible
economic impact on small entities
permitted under the CPS FMP.
Fishery information from recent years
suggests that a 20-percent incidental
landing limit will not unnecessarily
constrain other CPS fisheries that
encounter Pacific sardine. In the
previous years when the commercial
directed Pacific sardine fishery was
closed, the maximum incidental harvest
limit of Pacific sardine in other CPS
fisheries was set initially at 40 percent,
and then set to be reduced when the
year’s cumulative landings hit a certain
level. For example, for the 2018–2019
Pacific sardine fishing year, incidental
harvest allocation for Pacific sardine in
other CPS fisheries was set at 40 percent
by weight until 2,500 mt were caught,
after which the limit would be reduced
to 20 percent. Similarly for the 2017–
2018 fishing year, 40 percent incidental
sardine harvest was allowed until 2,000
mt were caught, after which it would
have been reduced to 20 percent. The
2017–2018 fishing year also had a
provision to further reduce incidental
sardine harvest to 10 percent if total
catch reached 5,000 mt. NMFS
considered the reduction in the Pacific
sardine incidental allowances for the
2019–2020 fishing year and potential
impact for CPS fisheries that
incidentally catch this stock in the RFA
determination for this action. During the
2017–2018 and 2018–2019 fishing years,
while operating with a 40-percent
incidental trip limit, the other CPS
fisheries only incidentally caught 275
mt and 174 mt (as of April 1, 2019) of
Pacific sardine, respectively. Over this
same time period of the 2018–2019
Pacific sardine fishing year, the
commercial anchovy fishery off of
California caught approximately 11,000
mt of anchovy, leading to one of the
highest annual anchovy landing levels
in California in recent history. These
numbers demonstrate that the anchovy
fishery did not need to regularly utilize
a high percentage mix of Pacific sardine
when harvesting anchovy.
Although the commenter presents
landings data that they state
demonstrates that a lower incidental
limit will constrain other CPS fisheries,
based on the information above, it
appears that when this data is put in the
larger context of all landings per
species, not just landings that had
incidental catch, a 20 percent incidental
may not be as restrictive as looks based
on that data. For example, the
commenter references data showing that
four anchovy landings during the
current 2018–2019 Pacific sardine
fishing season had incidental Pacific
sardine in amounts higher than 20
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percent. However, this is only 4 out of
406 landings made by CPS fishermen
targeting anchovy that had any
incidental Pacific sardine landings
greater than 20 percent. Similarly, for
the Pacific mackerel fishery, only 1
landing in the 2017–2018 fishing year,
and none of the 177 Pacific mackerel
landings in the 2018–2019 fishing year
had any Pacific sardine landings that
exceeded than 20 percent. Therefore
based on recent fishing practices, and
recent utilization allowances for
incidental Pacific sardine landings,
NMFS determined that this action
would not significantly affect
profitability. NMFS recognizes that CPSspecies mixing rates can change and
fishing conditions are dynamic. To
accommodate the dynamic nature of the
CPS fisheries, NMFS has supported
Council recommendations over the last
few years that have allowed access to
the applicable Pacific sardine ACLs by
other CPS fisheries that have available
quota, including the maximum 40percent incidental harvest limit during
the last 2 years and the maximum 20percent incidental harvest limit this
year.
Comment 2: The CWPA stated that
NMFS did not adequately consider the
potential for significant environmental
effects, including socioeconomic effects,
from the proposed action, and should
have conducted an environmental
assessment (EA) under the National
Environmental Policy Act.
Response: NMFS considered whether
this action triggered any extraordinary
circumstances that may require analysis
in an EA or environmental impact
statement (EIS). NMFS did not find that
any extraordinary circumstances were
triggered. In addition, NMFS
determined that there were no
significant adverse economic impacts
caused by this action. Additionally,
NMFS determined that this rule does
not demonstrate any potential for
adverse impacts to the marine
environment because the level of
allowable fishing has been analyzed
within the scope of impacts considered
in the EIS prepared for the original FMP
and the EA prepared for Amendment 13
to the FMP. Lastly, this rule prohibits
the primary commercial fishery from
harvesting Pacific sardine during the
upcoming fishing year to protect the
Pacific sardine resource, thereby
negating the potential for any significant
impacts on any target or non-target
species or other marine resources.
Comment 3: The CWPA comment
letter stated that NMFS should
disapprove this action because it is not
based on the best scientific information
available. The commenter’s primary
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rationale for this is that the Pacific
sardine stock assessment is inaccurate
and that Pacific sardine biomass is
higher than the estimate from the most
recent stock assessment.
Response: NMFS determined that this
action is based on the best scientific
information available. This includes the
2019 Pacific sardine stock assessment,
which the Council’s SSC and NMFS
reviewed and approved as the best
scientific information available for
setting Pacific sardine harvest
specifications. NMFS did not identify
inaccuracies in the 2019 Pacific sardine
assessment. NMFS recognizes that
during various reviews of the Pacific
sardine assessment, the assessors and
reviewers explored uncertainty in the
data used in the model and the
technical methods used to analyze the
data (e.g. selectivity patterns for the
survey data, use of different age and
length composition data, recruitment).
However, the uncertainty in the data or
the technical methods was not
substantial enough to invalidate the
determination that the assessment
represents the best scientific
information available for setting Pacific
sardine harvest specifications.
NMFS is continually working to
improve methods to estimate Pacific
sardine biomass. In recent years, the
commenter and other CPS industry
members have stated that the Pacific
sardine abundance they observe at sea is
inconsistent with the results of the
Pacific sardine assessment. To that end,
the harvest specifications in this action
were set to allow up to 405 mt of Pacific
sardine to be harvested under two EFPs
supporting industry-run research on
Pacific sardine and other CPS. These
EFPs will allow participants to assess
CPS abundance in inshore areas that are
too shallow for NOAA vessels to survey.
NMFS is currently finalizing review and
approval for this important research.
Comment 4: Oceana supported the
prohibition on primary directed fishing
for Pacific sardine and the reduction in
the incidental catch allowance of Pacific
sardine in other CPS fisheries from 40
percent to 20 percent. In addition to
commenting on the proposed rule,
Oceana’s comment (and previous public
comments by Oceana referenced in its
letter) requested reconsideration of
various aspects of Pacific sardine
management that are not within the
scope of this action. The
recommendations in the comment letter
include changing the start date of the
fishery, revising the MSST value, and
modifying various parameters in the
OFL, ABC, and HG control rules.
Oceana also commented on NMFS’
timeline on declaring the Pacific sardine
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stock overfished and requested that
NMFS declare that overfishing occurred
on Pacific sardine in past years based on
exploitation rates presented in the 2019
Pacific sardine stock assessment,
specifically that overfishing occurred in
2017 and 2018 based on the combined
U.S. and Mexico exploitation rate,
which are also actions outside the scope
of this rule.
Response: NMFS agrees with the
commenter regarding the prohibition on
primary directed fishing and the 20percent incidental landing limit for
Pacific sardine. Changes to the
management framework of Pacific
sardine and to the Pacific sardine
harvest control rules are set in the CPS
FMP and are beyond the scope of this
rulemaking. NMFS notes that some of
these changes, such as to the value for
Distribution in the Pacific sardine
harvest control rules and the MSST,
have been previously reviewed during
specific agenda items at Council
meetings. However, NMFS will
communicate other concerns to the
PFMC for their consideration during
related future management planning for
the Pacific sardine stock.
Regarding the change in stock status
for Pacific sardine, NMFS is still in the
process of making a formal declaration
on a change to the stock status of Pacific
sardine to overfished, however we still
expect to submit a letter to the Council
regarding a change in the status of the
Pacific sardine stock in the coming
months.
As it relates to the comment that
overfishing has occurred, it appears the
commenter is confused with regard to
how overfishing is determined for
Pacific sardine, how ABC is calculated,
and the differences between rate/fishing
mortality based overfishing criteria and
total catch based criteria. As stated in
the preamble of the proposed rule and
this final rule, Pacific sardine uses a
total catch-based method to determine
whether overfishing is occurring. That is
why the OFL is set annually in the
harvest specifications. Pacific sardine
harvest specifications do not set a
fishing mortality level or rate as the
indicator for whether overfishing will
occur. Although NMFS’ MagnusonStevens Act National Standard 1
guidelines at 50 CFR part 600 Subpart
D provide the option of defining
‘‘overfishing status’’ by using either a
fishing mortality rate measured against
a maximum fishing mortality threshold
or catch in terms of numbers or weight
of fish measured against an OFL, the
CPS FMP defines overfishing for Pacific
sardine by establishing an OFL
annually. Overfishing would occur for
Pacific sardine if total United States
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catch exceeded the OFL. As noted by
the commenter this has never happened.
Therefore overfishing has never
occurred in this fishery.
Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this final rule is consistent with the
CPS FMP, other provisions of the
Magnuson-Stevens Act, and other
applicable law.
There is good cause under 5 U.S.C.
553(d)(3) to waive the 30-day delay in
effectiveness of these final harvest
specifications for the 2019–2020 Pacific
sardine fishing season. In accordance
with the FMP, this rule was
recommended by the Council at its
meeting in April 2019. The contents of
this rule were based on the best
available information on the population
status of Pacific sardine at that time.
Making these final specifications
effective on July 1, the first day of the
fishing season, is necessary for the
conservation and management of the
Pacific sardine resource because last
year’s restrictions on harvest are not
effective after June 30. The FMP
requires a prohibition on directed
fishing for Pacific sardine for the 2019–
2020 fishing year because the sardine
biomass has dropped below the
150,000-mt threshold for a primary
directed commercial fishery. The
purpose of this threshold in the FMP,
and for prohibiting directed fishing
when the biomass drops below this
level, is to protect the stock when
biomass is low and provide a buffer of
spawning stock that is protected from
fishing and can contribute to rebuilding
the stock. A delay in the effectiveness of
this rule for a full 30 days would result
in the re-opening the directed
commercial fishery on July 1.
Delaying the effective date of this rule
beyond July 1 would be contrary to the
public interest because it would
jeopardize the sustainability of the
Pacific sardine stock. Furthermore, most
affected fishermen are aware that the
Council recommended that directed
commercial fishing be prohibited for the
2019–2020 fishing year and are fully
prepared to comply with the
prohibition.
This final rule is exempt from the
procedures of E.O. 12866 because this
action is an annual fishery management
specification under the MagnusonStevens Act.
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
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would not have a significant economic
impact on a substantial number of small
entities for purposes of the RFA. The
factual basis for the certification was
published in the proposed rule and is
not repeated here. NMFS received a
comment regarding this certification
that is summarized above in the
preamble of the final rule. This
comment did not cause NMFS to change
its determination regarding the
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certification. As a result, a regulatory
flexibility analysis was not required and
none was prepared.
Pursuant to Executive Order 13175,
this final rule was developed after
meaningful consultation and
collaboration with the tribal
representative on the Council who has
agreed with the provisions that apply to
tribal vessels.
This action does not contain a
collection-of-information requirement
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for purposes of the Paperwork
Reduction Act.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 25, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2019–13960 Filed 6–28–19; 8:45 am]
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[Federal Register Volume 84, Number 126 (Monday, July 1, 2019)]
[Rules and Regulations]
[Pages 31222-31226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13960]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 190409351-9512-02]
RIN 0648-XG972
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.
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SUMMARY: NMFS issues this final rule to implement annual management
measures and catch limits for the northern subpopulation of Pacific
sardine for the fishing year from July 1, 2019, through June 30, 2020.
This action prohibits directed commercial fishing for Pacific sardine
off the U.S. Pacific Coast, except in the live bait or minor directed
fisheries, or as part of exempted fishing permit activities, and
establishes limits on the incidental harvest of Pacific sardine in
other fisheries. This action is intended to conserve and manage the
Pacific sardine stock off the U.S. West Coast.
DATES: Effective July 1, 2019, through June 30, 2020.
FOR FURTHER INFORMATION CONTACT: Lynn Massey, West Coast Region, NMFS,
(562) 436-2462, [email protected].
SUPPLEMENTARY INFORMATION: NMFS manages the Pacific sardine fishery in
the U.S. exclusive economic zone (EEZ) off the Pacific Coast
(California, Oregon, and Washington) in accordance with the Coastal
Pelagic Species (CPS) Fishery Management Plan (FMP). The FMP and its
implementing regulations require NMFS to set annual catch levels for
the Pacific sardine fishery based on the annual specification framework
and control rules in the FMP. These control rules include the harvest
guideline (HG) control rule, which, in conjunction with the overfishing
limit (OFL) and acceptable biological catch (ABC) rules in the FMP, are
used to manage harvest levels for Pacific sardine, in accordance with
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq.
This final rule implements the annual catch levels and reference
points for the 2019-2020 fishing year. The final rule
[[Page 31223]]
adopts, without changes, the catch levels and restrictions that NMFS
proposed in the rule published on May 28, 2019 (84 FR 24459), including
the OFL and ABC that take into consideration uncertainty surrounding
the current estimate of biomass for Pacific sardine in the U.S. EEZ off
the U.S. Pacific Coast. The proposed rule for this action included
additional background on specifications and the details of how the
Pacific Fishery Management Council (Council) derived its recommended
specifications for Pacific sardine. Those details are not repeated
here. For additional information, please refer to the proposed rule for
this action.
Table 1--Reference Points for the 2019-2020 Sardine Fishing Year in Metric Tons
[mt]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Biomass estimate OFL ABC HG ACL ACT
--------------------------------------------------------------------------------------------------------------------------------------------------------
27,547............................................................. 5,816 4,514 0 4,514 4,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
This final rule implements an OFL of 5,816 mt, an ABC and ACL of
4,514 mt, and allows Pacific sardine catch only for live bait, in a
minor directed fishery, as incidental catch in other fisheries, or
under an exempted fishing permit (EFP). Additionally, this rule
implements an annual catch target (ACT) of 4,000 mt, as well as
restrictions on the incidental catch of Pacific sardine by other
fisheries and a trip limit that could be imposed on directed fishing
for sardine as live bait.
For the first time, the estimated biomass for Pacific sardine has
fallen below the 50,000-mt minimum stock size threshold (MSST) defined
in the CPS FMP, which requires NMFS to initiate a process to declare
the Pacific sardine stock overfished. Although NMFS has not officially
determined the stock to be overfished, the Council made recommendations
for the 2019-2020 Pacific sardine harvest specifications in
anticipation of NMFS making such a determination in the near future.
The CPS FMP previously required that when a CPS stock is overfished,
live bait landings of that stock be restricted to only incidental catch
up to 15 percent of total CPS on board. However, on June 10, 2019, NMFS
approved Amendment 17 to the CPS FMP, which removed this pre-specified
limit on fishing for live bait of a CPS stock that is overfished.
Because Amendment 17 was still under Secretarial review at the April
2019 Council meeting, the Council recommended management measures for
the 2019-2020 sardine fishing year that matched the status quo FMP
provisions (i.e., no directed live bait for overfished stocks and 15
percent maximum incidental limit on live bait for overfished stocks)
but also stated its desire to use the provision of Amendment 17 (i.e.,
allow directed live bait for overfished stocks with no predetermined
limits) if it is approved. Because NMFS approved Amendment 17, directed
live bait fishing for sardine will be permitted for the 2019-2020
fishing year per the Council's recommendation.
The final specifications include the following management measures
and inseason accountability measures for commercial sardine harvest
during the 2019-2020 fishing year:
(1) Directed live bait fishing is allowed, subject to the
accountability measure specified under number 2 below.
(2) If landings by the live bait fishery reach 2,500 mt, NMFS will
impose a 1-mt trip limit on retention of sardine in the live bait
fishery.
(3) A 20-percent incidental per landing by weight catch allowance
will be applied to other CPS primary directed commercial fisheries
(e.g., Pacific mackerel).
(4) A 2-mt per trip incidental catch allowance will apply to non-
CPS fisheries.
(5) If the ACT of 4,000 mt is harvested by all fishing sectors
combined, NMFS will impose a 1-mt trip limit on sardine caught as live
bait, and a 1-mt trip limit on incidentally-caught sardine when caught
while targeting other CPS.
All sources of catch, including any EFP set-asides, the live bait
fishery, and other minimal sources of harvest, such as incidental catch
in CPS and non-CPS fisheries, and minor directed fishing, will be
counted against the ACL.
The NMFS West Coast Regional Administrator will publish a notice in
the Federal Register to announce when catch reaches the incidental
limits as well as any changes to allowable incidental catch
percentages. Additionally, to ensure that the regulated community is
informed of any closure, NMFS will make announcements through other
means, including emails to fishermen, processors, and state fishery
management agencies.
As explained in the proposed rule, the Quinault Indian Nation did
not request a tribal set-aside for the 2019-2020 fishing year and
therefore no set-aside was established and none is accounted for under
the ACL.
At the April 2019 meeting, the Council also voted in support of two
EFP proposals that would exempt the permit holders from the prohibition
on direct harvest of Pacific sardine. The ACT and ACL were formulated
with the assumption that up to 405 mt of Pacific sardine would be
harvested under these two EFPs.
On May 28, 2019, NMFS published a proposed rule for this action and
solicited public comments (84 FR 24459) through June 12, 2018. NMFS
received two public comment letters--one from the CPS industry group
California Wetfish Producers Association (CWPA), and one from the
environmental advocacy organization Oceana. Both comment letters
included multiple comments, including some comments that were beyond
the scope of this rulemaking. After considering both public comments,
no changes were made from the proposed rule. NMFS summarizes and
responds to the comment letters below.
Comments and Responses
Comment 1: The CWPA stated that it disagrees with the determination
made for this rule by the Chief Counsel for Regulation of the
Department of Commerce under the Regulatory Flexibility Act (RFA), 5
U.S.C. 601 et seq., which concluded that the 2019-2020 proposed harvest
specifications and management measures would not have a significant
economic impact on a substantial number of small entities. The
commenter's primary objection to the determination is that the proposed
action would significantly reduce profit for a substantial number of
small entities, and specifically that the proposed 20-percent
incidental landing allowance of Pacific sardine in other CPS directed
fisheries would have a significant impact on the affected entities.
Response: As stated in the proposed rule, the annual HG is the main
tool used to manage the principal commercial sardine fishery and is the
harvest level NMFS typically uses for
[[Page 31224]]
profitability analysis. For the purposes of profitability analysis,
this final rule implements an HG of zero for the 2019-2020 Pacific
sardine fishing season (July 1, 2019, through June 30, 2020). Likewise,
the HG for the previous 3 fishing years was also set at zero, thereby
prohibiting the primary commercial directed Pacific sardine fishery.
Therefore, NMFS determined that this rule will not change the potential
profitability compared to recent fishing years for the primary
commercial fishery for Pacific sardine.
In addition to the primary commercial fishery, NMFS recognized that
this action also affects other fisheries for Pacific sardine such as
live bait and minor directed fisheries, as well as other CPS fisheries
that incidentally catch Pacific sardine. NMFS also determined that the
proposed action will not significantly reduce the profitability of
those fisheries compared to previous years. Specifically, the various
directed and incidental catch allowances, such as the maximum allowed
incidental catch rate of 20 percent, and other inseason management
measures in this rule, are intended to not only help prevent
overfishing but also ensure, to the extent practicable, maximum access
to Pacific sardine throughout the fishing year for these other fishery
sectors.
Regarding the commenter's objection to setting the incidental
landing allowance at 20 percent, NMFS notes that the FMP requires that
the incidental catch allowance for an overfished CPS stock be set
between 0 and 20 percent of the landed weight of the target stock.
Therefore, the incidental catch allowances for other CPS fisheries
cannot be higher than 20 percent. According to the CPS FMP, Pacific
sardine is in an overfished condition when its biomass is below 50,000
mt. The 2019 Pacific sardine stock assessment, which has been
determined to be the best scientific information available for setting
the 2019-2020 harvest specifications, shows that Pacific sardine
biomass is below this level. Although NMFS has not officially
determined the stock to be overfished, the Council recognized that NMFS
would likely declare the stock overfished in the upcoming several
months, and accordingly recommended an incidental allowance limit
within this 0 to 20 percent range during the April meeting when the
Council makes decisions about annual Pacific sardine specifications for
the season that starts the following July. The only alternative to the
20-percent incidental allowance would have been a lower incidental
allowance. For this reason, implementing a 20-percent incidental
allowance has the lowest possible economic impact on small entities
permitted under the CPS FMP.
Fishery information from recent years suggests that a 20-percent
incidental landing limit will not unnecessarily constrain other CPS
fisheries that encounter Pacific sardine. In the previous years when
the commercial directed Pacific sardine fishery was closed, the maximum
incidental harvest limit of Pacific sardine in other CPS fisheries was
set initially at 40 percent, and then set to be reduced when the year's
cumulative landings hit a certain level. For example, for the 2018-2019
Pacific sardine fishing year, incidental harvest allocation for Pacific
sardine in other CPS fisheries was set at 40 percent by weight until
2,500 mt were caught, after which the limit would be reduced to 20
percent. Similarly for the 2017-2018 fishing year, 40 percent
incidental sardine harvest was allowed until 2,000 mt were caught,
after which it would have been reduced to 20 percent. The 2017-2018
fishing year also had a provision to further reduce incidental sardine
harvest to 10 percent if total catch reached 5,000 mt. NMFS considered
the reduction in the Pacific sardine incidental allowances for the
2019-2020 fishing year and potential impact for CPS fisheries that
incidentally catch this stock in the RFA determination for this action.
During the 2017-2018 and 2018-2019 fishing years, while operating with
a 40-percent incidental trip limit, the other CPS fisheries only
incidentally caught 275 mt and 174 mt (as of April 1, 2019) of Pacific
sardine, respectively. Over this same time period of the 2018-2019
Pacific sardine fishing year, the commercial anchovy fishery off of
California caught approximately 11,000 mt of anchovy, leading to one of
the highest annual anchovy landing levels in California in recent
history. These numbers demonstrate that the anchovy fishery did not
need to regularly utilize a high percentage mix of Pacific sardine when
harvesting anchovy.
Although the commenter presents landings data that they state
demonstrates that a lower incidental limit will constrain other CPS
fisheries, based on the information above, it appears that when this
data is put in the larger context of all landings per species, not just
landings that had incidental catch, a 20 percent incidental may not be
as restrictive as looks based on that data. For example, the commenter
references data showing that four anchovy landings during the current
2018-2019 Pacific sardine fishing season had incidental Pacific sardine
in amounts higher than 20 percent. However, this is only 4 out of 406
landings made by CPS fishermen targeting anchovy that had any
incidental Pacific sardine landings greater than 20 percent. Similarly,
for the Pacific mackerel fishery, only 1 landing in the 2017-2018
fishing year, and none of the 177 Pacific mackerel landings in the
2018-2019 fishing year had any Pacific sardine landings that exceeded
than 20 percent. Therefore based on recent fishing practices, and
recent utilization allowances for incidental Pacific sardine landings,
NMFS determined that this action would not significantly affect
profitability. NMFS recognizes that CPS-species mixing rates can change
and fishing conditions are dynamic. To accommodate the dynamic nature
of the CPS fisheries, NMFS has supported Council recommendations over
the last few years that have allowed access to the applicable Pacific
sardine ACLs by other CPS fisheries that have available quota,
including the maximum 40-percent incidental harvest limit during the
last 2 years and the maximum 20-percent incidental harvest limit this
year.
Comment 2: The CWPA stated that NMFS did not adequately consider
the potential for significant environmental effects, including
socioeconomic effects, from the proposed action, and should have
conducted an environmental assessment (EA) under the National
Environmental Policy Act.
Response: NMFS considered whether this action triggered any
extraordinary circumstances that may require analysis in an EA or
environmental impact statement (EIS). NMFS did not find that any
extraordinary circumstances were triggered. In addition, NMFS
determined that there were no significant adverse economic impacts
caused by this action. Additionally, NMFS determined that this rule
does not demonstrate any potential for adverse impacts to the marine
environment because the level of allowable fishing has been analyzed
within the scope of impacts considered in the EIS prepared for the
original FMP and the EA prepared for Amendment 13 to the FMP. Lastly,
this rule prohibits the primary commercial fishery from harvesting
Pacific sardine during the upcoming fishing year to protect the Pacific
sardine resource, thereby negating the potential for any significant
impacts on any target or non-target species or other marine resources.
Comment 3: The CWPA comment letter stated that NMFS should
disapprove this action because it is not based on the best scientific
information available. The commenter's primary
[[Page 31225]]
rationale for this is that the Pacific sardine stock assessment is
inaccurate and that Pacific sardine biomass is higher than the estimate
from the most recent stock assessment.
Response: NMFS determined that this action is based on the best
scientific information available. This includes the 2019 Pacific
sardine stock assessment, which the Council's SSC and NMFS reviewed and
approved as the best scientific information available for setting
Pacific sardine harvest specifications. NMFS did not identify
inaccuracies in the 2019 Pacific sardine assessment. NMFS recognizes
that during various reviews of the Pacific sardine assessment, the
assessors and reviewers explored uncertainty in the data used in the
model and the technical methods used to analyze the data (e.g.
selectivity patterns for the survey data, use of different age and
length composition data, recruitment). However, the uncertainty in the
data or the technical methods was not substantial enough to invalidate
the determination that the assessment represents the best scientific
information available for setting Pacific sardine harvest
specifications.
NMFS is continually working to improve methods to estimate Pacific
sardine biomass. In recent years, the commenter and other CPS industry
members have stated that the Pacific sardine abundance they observe at
sea is inconsistent with the results of the Pacific sardine assessment.
To that end, the harvest specifications in this action were set to
allow up to 405 mt of Pacific sardine to be harvested under two EFPs
supporting industry-run research on Pacific sardine and other CPS.
These EFPs will allow participants to assess CPS abundance in inshore
areas that are too shallow for NOAA vessels to survey. NMFS is
currently finalizing review and approval for this important research.
Comment 4: Oceana supported the prohibition on primary directed
fishing for Pacific sardine and the reduction in the incidental catch
allowance of Pacific sardine in other CPS fisheries from 40 percent to
20 percent. In addition to commenting on the proposed rule, Oceana's
comment (and previous public comments by Oceana referenced in its
letter) requested reconsideration of various aspects of Pacific sardine
management that are not within the scope of this action. The
recommendations in the comment letter include changing the start date
of the fishery, revising the MSST value, and modifying various
parameters in the OFL, ABC, and HG control rules. Oceana also commented
on NMFS' timeline on declaring the Pacific sardine stock overfished and
requested that NMFS declare that overfishing occurred on Pacific
sardine in past years based on exploitation rates presented in the 2019
Pacific sardine stock assessment, specifically that overfishing
occurred in 2017 and 2018 based on the combined U.S. and Mexico
exploitation rate, which are also actions outside the scope of this
rule.
Response: NMFS agrees with the commenter regarding the prohibition
on primary directed fishing and the 20-percent incidental landing limit
for Pacific sardine. Changes to the management framework of Pacific
sardine and to the Pacific sardine harvest control rules are set in the
CPS FMP and are beyond the scope of this rulemaking. NMFS notes that
some of these changes, such as to the value for Distribution in the
Pacific sardine harvest control rules and the MSST, have been
previously reviewed during specific agenda items at Council meetings.
However, NMFS will communicate other concerns to the PFMC for their
consideration during related future management planning for the Pacific
sardine stock.
Regarding the change in stock status for Pacific sardine, NMFS is
still in the process of making a formal declaration on a change to the
stock status of Pacific sardine to overfished, however we still expect
to submit a letter to the Council regarding a change in the status of
the Pacific sardine stock in the coming months.
As it relates to the comment that overfishing has occurred, it
appears the commenter is confused with regard to how overfishing is
determined for Pacific sardine, how ABC is calculated, and the
differences between rate/fishing mortality based overfishing criteria
and total catch based criteria. As stated in the preamble of the
proposed rule and this final rule, Pacific sardine uses a total catch-
based method to determine whether overfishing is occurring. That is why
the OFL is set annually in the harvest specifications. Pacific sardine
harvest specifications do not set a fishing mortality level or rate as
the indicator for whether overfishing will occur. Although NMFS'
Magnuson-Stevens Act National Standard 1 guidelines at 50 CFR part 600
Subpart D provide the option of defining ``overfishing status'' by
using either a fishing mortality rate measured against a maximum
fishing mortality threshold or catch in terms of numbers or weight of
fish measured against an OFL, the CPS FMP defines overfishing for
Pacific sardine by establishing an OFL annually. Overfishing would
occur for Pacific sardine if total United States catch exceeded the
OFL. As noted by the commenter this has never happened. Therefore
overfishing has never occurred in this fishery.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this final rule is
consistent with the CPS FMP, other provisions of the Magnuson-Stevens
Act, and other applicable law.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effectiveness of these final harvest specifications for the
2019-2020 Pacific sardine fishing season. In accordance with the FMP,
this rule was recommended by the Council at its meeting in April 2019.
The contents of this rule were based on the best available information
on the population status of Pacific sardine at that time. Making these
final specifications effective on July 1, the first day of the fishing
season, is necessary for the conservation and management of the Pacific
sardine resource because last year's restrictions on harvest are not
effective after June 30. The FMP requires a prohibition on directed
fishing for Pacific sardine for the 2019-2020 fishing year because the
sardine biomass has dropped below the 150,000-mt threshold for a
primary directed commercial fishery. The purpose of this threshold in
the FMP, and for prohibiting directed fishing when the biomass drops
below this level, is to protect the stock when biomass is low and
provide a buffer of spawning stock that is protected from fishing and
can contribute to rebuilding the stock. A delay in the effectiveness of
this rule for a full 30 days would result in the re-opening the
directed commercial fishery on July 1.
Delaying the effective date of this rule beyond July 1 would be
contrary to the public interest because it would jeopardize the
sustainability of the Pacific sardine stock. Furthermore, most affected
fishermen are aware that the Council recommended that directed
commercial fishing be prohibited for the 2019-2020 fishing year and are
fully prepared to comply with the prohibition.
This final rule is exempt from the procedures of E.O. 12866 because
this action is an annual fishery management specification under the
Magnuson-Stevens Act.
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
[[Page 31226]]
would not have a significant economic impact on a substantial number of
small entities for purposes of the RFA. The factual basis for the
certification was published in the proposed rule and is not repeated
here. NMFS received a comment regarding this certification that is
summarized above in the preamble of the final rule. This comment did
not cause NMFS to change its determination regarding the certification.
As a result, a regulatory flexibility analysis was not required and
none was prepared.
Pursuant to Executive Order 13175, this final rule was developed
after meaningful consultation and collaboration with the tribal
representative on the Council who has agreed with the provisions that
apply to tribal vessels.
This action does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 25, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2019-13960 Filed 6-28-19; 8:45 am]
BILLING CODE 3510-22-P
