Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications; 2023-2024 Annual Specifications and Management Measures for Pacific Sardine, 31214-31217 [2023-10322]
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Federal Register / Vol. 88, No. 94 / Tuesday, May 16, 2023 / Proposed Rules
where the design patent practitioner
represents the design patent owner after
a design patent issues in a proceeding
before the Office, and when drafting the
assignment the design patent
practitioner does no more than replicate
the terms of a previously existing oral or
written obligation of assignment from
one person or party to another person or
party.
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■ 7. Amend § 11.6 by:
■ a. Re-designating paragraph (d) as
paragraph (e), and
■ b. Adding new paragraph (d).
The revision and addition read as
follows:
§ 11.6 Registration of attorneys and
agents.
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(d) Design patent practitioners. Any
citizen of the United States who is an
attorney and who fulfills the
requirements of this part may be
registered as a design patent attorney to
practice before the Office in design
patent proceedings. Any citizen of the
United States who is not an attorney,
and who fulfills the requirements of this
part may be registered as a design patent
agent to practice before the Office in
design patent proceedings.
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■ 8. Amend § 11.8 by revising paragraph
(b) to read as follows:
Oath and registration fee.
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(b) An individual shall not be
registered as an attorney under § 11.6(a),
registered as an agent under § 11.6(b) or
(c), registered as a design patent
practitioner under § 11.6(d), or granted
limited recognition under § 11.9(b)
unless, within two years of the mailing
date of a notice of passing the
registration examination or of a waiver
of the examination, the individual files
with the OED Director a completed Data
Sheet, an oath or declaration prescribed
by the USPTO Director, and the
registration fee set forth in § 1.21(a)(2) of
this subchapter. An individual seeking
registration as an attorney under
§ 11.6(a) must provide a certificate of
good standing of the bar of the highest
court of a State that is no more than six
months old.
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■ 9. Amend § 11.10 by revising
paragraph (b)(1) introductory text and
(b)(2) introductory text to read as
follows:
§ 11.10 Restrictions on practice in patent
matters; former and current Office
employees; government employees.
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§ 11.16 Requirements for admission to the
USPTO Law School Clinic Certification
Program.
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§ 11.8
(b) * * *
(1) To not knowingly act as an agent,
attorney, or design patent practitioner
for or otherwise represent any other
person:
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(2) To not knowingly act within two
years after terminating employment by
the Office as agent, attorney, or design
patent practitioner for, or otherwise
represent any other person:
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■ 10. Amend § 11.16 by revising
paragraph (c)(1)(i) to read as follows:
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(c) * * *
(1) * * *
(i) Be registered under § 11.6(a) or (b)
as a patent practitioner in active status
and good standing with OED;
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■ 11. Amend § 11.704 by revising
paragraph (b) to read as follows:
§ 11.704 Communication of fields of
practice and specialization.
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(b) A registered practitioner under
§ 11.6(a) who is an attorney may use the
designation ‘‘Patents,’’ ‘‘Patent
Attorney,’’ ‘‘Patent Lawyer,’’
‘‘Registered Patent Attorney,’’ or a
substantially similar designation. A
registered practitioner under § 11.6(b)
who is not an attorney may use the
designation ‘‘Patents,’’ ‘‘Patent Agent,’’
‘‘Registered Patent Agent,’’ or a
substantially similar designation. A
registered practitioner under § 11.6(d)
who is an attorney may use the
designation ‘‘Design Patent Attorney.’’ A
registered practitioner under § 11.6(d)
who is not an attorney may use the
designation ‘‘Design Patent Agent.’’
Unless authorized by § 11.14(b), a
registered patent agent shall not hold
themself out as being qualified or
authorized to practice before the Office
in trademark matters or before a court.
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PART 41—PRACTICE BEFORE THE
PATENT TRIAL AND APPEAL BOARD
12. The authority citation for part 41
continues to read as follows:
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Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21,
23, 32, 41, 134, 135, and Pub. L. 112–29.
13. Amend § 41.106 by revising
paragraph (f)(4) to read as follows:
■
§ 41.106
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Filing and service.
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(f) * * *
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(4) A certificate made by a person
other than a registered practitioner must
be in the form of an affidavit.
Katherine K. Vidal,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2023–10410 Filed 5–15–23; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 230510–0129; RTID 0648–
XC872]
Fisheries Off West Coast States;
Coastal Pelagic Species Fisheries;
Annual Specifications; 2023–2024
Annual Specifications and
Management Measures for Pacific
Sardine
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes to implement
annual harvest specifications and
management measures for the northern
subpopulation of Pacific sardine
(hereafter, Pacific sardine), for the
fishing year from July 1, 2023, through
June 30, 2024. The proposed action
would prohibit most directed
commercial fishing for Pacific sardine
off the coasts of Washington, Oregon,
and California. Pacific sardine harvest
would be allowed only for use as live
bait, in minor directed fisheries, as
incidental catch in other fisheries, or as
authorized under exempted fishing
permits. The incidental harvest of
Pacific sardine would be limited to 20
percent by weight of all fish per trip
when caught with other stocks managed
under the Coastal Pelagic Species
Fishery Management Plan, or up to 2
metric tons per trip when caught with
non-Coastal Pelagic Species stocks. The
proposed annual catch limit for the
2023–2024 Pacific sardine fishing year
is 3,953 metric tons. This proposed rule
is intended to conserve, manage, and
rebuild the Pacific sardine stock off the
U.S. West Coast.
DATES: Comments must be received by
May 31, 2023.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
SUMMARY:
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Federal Register / Vol. 88, No. 94 / Tuesday, May 16, 2023 / Proposed Rules
NMFS–2023–0036, by the following
method:
• Electronic Submissions: Submit all
public comments via the Federal eRulemaking Portal. Go to https://
www.regulations.gov and enter NOAA–
NMFS–2023–0036 in the Search box.
Click on the ‘‘Comment’’ icon, complete
the required fields, and enter or attach
your comments.
Instructions: Comments sent by any
other method or received after the end
of the comment period may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
FOR FURTHER INFORMATION CONTACT:
Taylor Debevec, West Coast Region,
NMFS, (562) 619–2052,
Taylor.Debevec@noaa.gov.
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 CPS 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
(MSA), 16 U.S.C. 1801 et seq.
During public meetings each year, the
NMFS Southwest Fisheries Science
Center (SWFSC) presents the estimated
biomass for Pacific sardine to the Pacific
Fishery Management Council (Council),
including the Council’s CPS
Management Team (Team), CPS
Advisory Subpanel (Subpanel), and
Scientific and Statistical Committee
(SSC). The Team, Subpanel, and SSC
review the biomass and the status of the
fishery, and recommend applicable
catch limits and additional management
measures. Following Council review
and public comment, the Council
recommends catch limits and any inseason accountability measures to
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NMFS. NMFS publishes annual
specifications in the Federal Register to
establish these catch limits and
management measures for each Pacific
sardine fishing year.
This rule proposes the Council’s
recommended catch limits for the July
1, 2023–June 30, 2043 fishing year,
management measures to ensure that
harvest does not exceed those limits, an
OFL, and an ABC that takes into
consideration uncertainty surrounding
the current estimate of biomass for
Pacific sardine.
Recommended Catch Limits
According to the CPS FMP, the catch
limit for the primary directed fishery is
determined using the FMP-specified HG
formula. This Pacific sardine HG control
rule, the primary mechanism for setting
the primary directed fishery catch limit,
includes a CUTOFF parameter, which
has been set at a biomass level of
150,000 metric tons (mt). This amount
is subtracted from the annual biomass
estimate before calculating the
applicable HG for the fishing year.
Because the biomass estimate used this
year, 27,369 mt, is below that value, the
formula results in an HG of zero, and no
Pacific sardine are available for the
primary directed fishery during the
2023–2024 fishing season. This is the
ninth consecutive year that the primary
directed fishery is closed.
During the 2019–2020 fishing year,
the estimated biomass of Pacific sardine
dropped below its 50,000-mt minimum
stock size threshold (MSST), which
triggered an overfished determination
process. Accordingly, NMFS declared
the stock overfished on June 26, 2019,
and notified the Council of this
determination on July 9, 2019. NMFS
then worked with the Council to
develop a rebuilding plan for Pacific
which was finalized on June 24, 2021
(86 FR 33142). The rebuilding plan
(Amendment 18 to the CPS FMP)
stipulates that total catch limits (i.e.,
OFL/ABC/ACL) are to be set annually
based on annual stock assessments, the
control rules in the FMP, and
recommendations from the SSC
regarding uncertainty in the assessment
and OFL. The rebuilding plan also
includes the following management
measures: (1) closing the primary
directed fishery until the biomass
reaches or exceeds 150,000 mt; (2)
restricting incidental limits in other
primary directed CPS fisheries to no
more than 20 percent until the biomass
reaches or exceeds 50,000 mt; (3)
limiting catch in the minor directed
fishery to 1 mt per trip per day; and (4)
other management measure the Council
may recommend. The 2023–2024
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proposed harvest specifications are
consistent with the management
strategy in the rebuilding plan.
This year, there was no new stock
assessment because the Council had
previously recommended postponing
the assessment for a year so the SWFSC
could address issues of uncertainty in
the previous assessment. As such, the
Council’s SSC utilized the 2022 update
stock assessment (‘‘Update assessment
of the Pacific sardine resource in 2022
for U.S. management in 2022–2023’’),
which the SSC previously agreed
satisfied the Terms of Reference for an
update assessment and represents the
best scientific information available for
management of Pacific sardine. The SSC
also reviewed new information available
since last year, such as a summer 2022
acoustic-trawl total biomass estimate of
69,506 mt and the outcome of the SSC
CPS subcommittee meeting (March 20–
21, 2023).
Based on the 2022 update assessment
and associated estimated age 1+ biomass
of 27,369 mt and the control rules in the
FMP, the Council recommended, and
NMFS is proposing, an OFL of 5,506 mt,
an ABC of 3,953 mt, and an annual
catch limit (ACL) of 3,953 mt. There
would be a prohibition on commercial
Pacific sardine catch, unless it is
harvested as part of the live bait, tribal,1
or minor directed fisheries, as incidental
catch in other fisheries, or as part of
exempted fishing permit (EFP)
activities. The Council also
recommended, and NMFS is proposing,
an annual catch target (ACT) of 3,600 mt
for the 2023–2024 fishing year. For
comparison, the ABC/ACL and ACT
established last year were 4,274 mt and
3,800 mt, respectively. Although the
biomass estimate and OFL are the same
this year, the proposed ABC/ACL and
ACT for the 2023–2024 fishing year are
lower due to uncertainty and staleness
of the assessment and biomass estimate.
In conjunction with setting an ACT,
the Council also recommended inseason and other management measures
to ensure harvest opportunity under the
ACT is maintained throughout the year,
which are discussed in the next section.
Recommended Management Measures
The proposed annual harvest limits
and management measures were
developed in the context of NMFS’ July
2019 declaration that the Pacific sardine
stock was overfished and June 2021
approval of a rebuilding plan for the
stock. Because the biomass remains
below the 50,000 mt MSST, the FMP
1 For the 2023–2024 fishing year, the Quinault
Indian Nation has not requested a tribal set-aside,
and therefore none is proposed.
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Federal Register / Vol. 88, No. 94 / Tuesday, May 16, 2023 / Proposed Rules
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requires that incidental catch of Pacific
sardine in other CPS fisheries be limited
to an incidental allowance of no more
than 20 percent by weight (instead of a
maximum of 40 percent allowed when
below the CUTOFF but above the
MSST).
The following are the proposed
management measures and in-season
accountability measures for the Pacific
sardine 2023–2024 fishing year:
(1) If landings in the live bait fishery
reach 2,500 mt of Pacific sardine, then
a 1-mt per-trip limit of sardine would
apply to the live bait fishery.
(2) An incidental per-landing limit of
20-percent (by weight) Pacific sardine
applies to other CPS primary directed
fisheries (e.g., Pacific mackerel).
(3) If the ACT of 3,600 mt is attained,
then a 1-mt per-trip limit of Pacific
sardine would apply to all CPS fisheries
(i.e., 1) and 2) would no longer apply).
(4) An incidental per-landing
allowance of 2 mt of Pacific sardine
would apply to non-CPS fisheries until
the ACL is reached.
At the April 2023 meeting, the
Council also recommended NMFS
approve two EFP proposals requesting
an exemption from the prohibition to
directly harvest sardine during their
discussion of sardine management
measures. Those EFP proposals include
a total amount of up to 670 mt of the
ACL.
All sources of catch including any
fishing occurring as part of an EFP, the
live bait fishery, and other minimal
sources of harvest, such as incidental
catch in CPS and non-CPS fisheries and
minor directed fishing, will be
accounted for against the ACT and ACL.
The NMFS West Coast Regional
Administrator would 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 would make
announcements through other means
available, including emails to
fishermen, processors, and state fishery
management agencies.
Classification
Pursuant to section 304(b)(1)(A) of the
MSA, the NMFS Assistant
Administrator has determined that this
proposed rule is consistent with the CPS
FMP, other provisions of the MSA, and
other applicable law, subject to further
consideration after public comment.
NMFS finds that a 15-day comment
period for this action provides a
reasonable opportunity for public
participation in this action pursuant to
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Administrative Procedure Act section
553(c) (5 U.S.C. 553(c)), while also
ensuring that the final specifications are
in place for the start of the Pacific
sardine fishery on July 1, 2023. NMFS
received the recommendations from the
Council that form the basis for this rule
after the Council’s April 2023 meeting.
The Council provided an opportunity
for public comment at that meeting, as
it does every year before adopting the
recommended harvest specifications
and management measures for the
proceeding fishing year. The subject of
this proposed rule—the establishment of
the reference points—is considered a
routine action, because they are
calculated annually based on the
framework control rules in the FMP. A
prolonged comment period and
subsequent potential delay in
implementation past the start of the
2023 fishing year would be contrary to
the public interest, as it could create
confusion in the Pacific sardine
industry around current specifications
and management measures.
This proposed rule is exempt from
review under Executive Order 12866.
Pursuant to Executive Order 13175,
this proposed 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.
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities,
for the following reasons:
For Regulatory Flexibility Act (RFA)
purposes only, NMFS has established a
small business size standard for
businesses, including their affiliates,
whose primary industry is commercial
fishing (see 50 CFR 200.2). A business
primarily engaged in commercial fishing
(NAICS code 11411) is classified as a
small business if it is independently
owned and operated, is not dominant in
its field of operation (including its
affiliates), and has combined annual
receipts not in excess of $11 million for
all its affiliated operations worldwide.
The purpose of this proposed rule is
to conserve and rebuild the Pacific
sardine stock by preventing overfishing,
while still allowing harvest opportunity
among differing fishery sectors. This
will be accomplished by implementing
the 2023–2024 annual specifications for
Pacific sardine in the U.S. EEZ off the
West Coast. The small entities that
would be affected by the proposed
action are the vessels that would be
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expected to harvest Pacific sardine as
part of the West Coast CPS small purse
seine fleet. In 2014, the last year that a
directed fishery for Pacific sardine was
allowed, there were approximately 81
vessels permitted to operate in the
directed sardine fishery component of
the CPS fishery off the U.S. West Coast;
58 vessels in the Federal CPS limited
entry fishery off California (south of 39°
N lat.); and a combined 23 vessels in
Oregon and Washington’s state Pacific
sardine fisheries. We do not collect or
have access to information about
affiliation between vessels or affiliation
between vessels and processing entities
in this fishery, or receipts in Alaska,
Hawaii, or international fisheries, so it
is possible that some impacted entities
may exceed $11 million in ex-vessel
revenue or another size-standard
threshold. Based on available data, the
average annual West Coast revenue per
vessel for all west coast vessels,
including those described above
potentially affected by this rule, was
well below the threshold level of $11
million as of 2023; therefore, all of these
vessels are considered small businesses
under the RFA. Because each affected
vessel is a small business, this proposed
rule is considered to equally affect all of
these small entities in the same manner.
Therefore, this rule would not create
disproportionate costs between small
and large vessels/businesses.
The CPS FMP and its implementing
regulations require NMFS to annually
set an OFL, ABC, ACL, and HG or
annual catch target for the Pacific
sardine fishery based on the specified
harvest control rules in the FMP applied
to the current stock biomass estimate for
that year. The derived annual HG is the
level typically used to manage the
principal commercial sardine fishery
and is the harvest level NMFS typically
uses for profitability analysis each year.
As stated above, the CPS FMP dictates
that when the estimated biomass drops
below a certain level (150,000 mt), the
HG is zero. Because there is again no
directed fishing for the 2023–2024
fishing year, this proposed rule will not
change the potential profitability
compared to the previous fishing year.
Additionally, the proposed 2023–2024
ACL is still expected to account for the
various fishery sector needs (i.e., live
bait, incidental catch in other CPS
fisheries, and minor directed fisheries).
The revenue derived from harvesting
Pacific sardine is typically only one of
the sources of fishing revenue for the
commercial vessels that participate in
this fishery. As a result, the economic
impact to the fleet from the proposed
action cannot be viewed in isolation.
From year to year, depending on market
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conditions and availability of fish, most
CPS/sardine vessels supplement their
income by harvesting other species.
Many vessels in California also harvest
anchovy, mackerel, and in particular,
squid, making Pacific sardine only one
component of a multi-species CPS
fishery. Additionally, some sardine
vessels that operate off of Oregon and
Washington also fish for salmon in
Alaska or squid in California during
times of the year when sardine are not
available. The purpose of the incidental
catch limits proposed in this action are
to ensure the vessels impacted by a
prohibition on directly harvesting
sardine can still access these other
profitable fisheries while still
minimizing Pacific sardine harvest.
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CPS vessels typically rely on multiple
species for profitability because
abundance of Pacific sardine, like the
other CPS stocks, is highly associated
with ocean conditions and seasonality.
Variability in ocean conditions and
season results in variability in the
timing and location of CPS harvest
throughout the year. Because each
species responds to ocean conditions in
its own way, not all CPS stocks are
likely to be abundant at the same time.
Therefore, as abundance levels and
markets fluctuate, the CPS fishery as a
whole has relied on a group of species
for its annual revenues.
Therefore the proposed action, if
adopted, will not have a significant
economic impact on a substantial
number of small entities. As a result, an
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31217
Initial Regulatory Flexibility Analysis is
not required, and none has been
prepared.
This action does not contain a
collection-of-information requirement
for purposes of the Paperwork
Reduction Act. There are no relevant
Federal rules that may duplicate,
overlap, or conflict with the proposed
action.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 10, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023–10322 Filed 5–15–23; 8:45 am]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 88, Number 94 (Tuesday, May 16, 2023)]
[Proposed Rules]
[Pages 31214-31217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10322]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 230510-0129; RTID 0648-XC872]
Fisheries Off West Coast States; Coastal Pelagic Species
Fisheries; Annual Specifications; 2023-2024 Annual Specifications and
Management Measures for Pacific Sardine
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes to implement annual harvest specifications and
management measures for the northern subpopulation of Pacific sardine
(hereafter, Pacific sardine), for the fishing year from July 1, 2023,
through June 30, 2024. The proposed action would prohibit most directed
commercial fishing for Pacific sardine off the coasts of Washington,
Oregon, and California. Pacific sardine harvest would be allowed only
for use as live bait, in minor directed fisheries, as incidental catch
in other fisheries, or as authorized under exempted fishing permits.
The incidental harvest of Pacific sardine would be limited to 20
percent by weight of all fish per trip when caught with other stocks
managed under the Coastal Pelagic Species Fishery Management Plan, or
up to 2 metric tons per trip when caught with non-Coastal Pelagic
Species stocks. The proposed annual catch limit for the 2023-2024
Pacific sardine fishing year is 3,953 metric tons. This proposed rule
is intended to conserve, manage, and rebuild the Pacific sardine stock
off the U.S. West Coast.
DATES: Comments must be received by May 31, 2023.
ADDRESSES: You may submit comments on this document, identified by
NOAA-
[[Page 31215]]
NMFS-2023-0036, by the following method:
Electronic Submissions: Submit all public comments via the
Federal e-Rulemaking Portal. Go to https://www.regulations.gov and
enter NOAA-NMFS-2023-0036 in the Search box. Click on the ``Comment''
icon, complete the required fields, and enter or attach your comments.
Instructions: Comments sent by any other method or received after
the end of the comment period may not be considered by NMFS. All
comments received are a part of the public record and will generally be
posted for public viewing on www.regulations.gov without change. All
personal identifying information (e.g., name, address, etc.),
confidential business information, or otherwise sensitive information
submitted voluntarily by the sender will be publicly accessible. NMFS
will accept anonymous comments (enter ``N/A'' in the required fields if
you wish to remain anonymous).
FOR FURTHER INFORMATION CONTACT: Taylor Debevec, West Coast Region,
NMFS, (562) 619-2052, [email protected].
SUPPLEMENTARY INFORMATION: NMFS manages the Pacific sardine fishery in
the U.S. exclusive economic zone (EEZ) off the Pacific coast
(California, Oregon, and Washington) in accordance with the Coastal
Pelagic Species (CPS) Fishery Management Plan (FMP). 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 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 (MSA), 16 U.S.C. 1801 et seq.
During public meetings each year, the NMFS Southwest Fisheries
Science Center (SWFSC) presents the estimated biomass for Pacific
sardine to the Pacific Fishery Management Council (Council), including
the Council's CPS Management Team (Team), CPS Advisory Subpanel
(Subpanel), and Scientific and Statistical Committee (SSC). The Team,
Subpanel, and SSC review the biomass and the status of the fishery, and
recommend applicable catch limits and additional management measures.
Following Council review and public comment, the Council recommends
catch limits and any in-season accountability measures to NMFS. NMFS
publishes annual specifications in the Federal Register to establish
these catch limits and management measures for each Pacific sardine
fishing year.
This rule proposes the Council's recommended catch limits for the
July 1, 2023-June 30, 2043 fishing year, management measures to ensure
that harvest does not exceed those limits, an OFL, and an ABC that
takes into consideration uncertainty surrounding the current estimate
of biomass for Pacific sardine.
Recommended Catch Limits
According to the CPS FMP, the catch limit for the primary directed
fishery is determined using the FMP-specified HG formula. This Pacific
sardine HG control rule, the primary mechanism for setting the primary
directed fishery catch limit, includes a CUTOFF parameter, which has
been set at a biomass level of 150,000 metric tons (mt). This amount is
subtracted from the annual biomass estimate before calculating the
applicable HG for the fishing year. Because the biomass estimate used
this year, 27,369 mt, is below that value, the formula results in an HG
of zero, and no Pacific sardine are available for the primary directed
fishery during the 2023-2024 fishing season. This is the ninth
consecutive year that the primary directed fishery is closed.
During the 2019-2020 fishing year, the estimated biomass of Pacific
sardine dropped below its 50,000-mt minimum stock size threshold
(MSST), which triggered an overfished determination process.
Accordingly, NMFS declared the stock overfished on June 26, 2019, and
notified the Council of this determination on July 9, 2019. NMFS then
worked with the Council to develop a rebuilding plan for Pacific which
was finalized on June 24, 2021 (86 FR 33142). The rebuilding plan
(Amendment 18 to the CPS FMP) stipulates that total catch limits (i.e.,
OFL/ABC/ACL) are to be set annually based on annual stock assessments,
the control rules in the FMP, and recommendations from the SSC
regarding uncertainty in the assessment and OFL. The rebuilding plan
also includes the following management measures: (1) closing the
primary directed fishery until the biomass reaches or exceeds 150,000
mt; (2) restricting incidental limits in other primary directed CPS
fisheries to no more than 20 percent until the biomass reaches or
exceeds 50,000 mt; (3) limiting catch in the minor directed fishery to
1 mt per trip per day; and (4) other management measure the Council may
recommend. The 2023-2024 proposed harvest specifications are consistent
with the management strategy in the rebuilding plan.
This year, there was no new stock assessment because the Council
had previously recommended postponing the assessment for a year so the
SWFSC could address issues of uncertainty in the previous assessment.
As such, the Council's SSC utilized the 2022 update stock assessment
(``Update assessment of the Pacific sardine resource in 2022 for U.S.
management in 2022-2023''), which the SSC previously agreed satisfied
the Terms of Reference for an update assessment and represents the best
scientific information available for management of Pacific sardine. The
SSC also reviewed new information available since last year, such as a
summer 2022 acoustic-trawl total biomass estimate of 69,506 mt and the
outcome of the SSC CPS subcommittee meeting (March 20-21, 2023).
Based on the 2022 update assessment and associated estimated age 1+
biomass of 27,369 mt and the control rules in the FMP, the Council
recommended, and NMFS is proposing, an OFL of 5,506 mt, an ABC of 3,953
mt, and an annual catch limit (ACL) of 3,953 mt. There would be a
prohibition on commercial Pacific sardine catch, unless it is harvested
as part of the live bait, tribal,\1\ or minor directed fisheries, as
incidental catch in other fisheries, or as part of exempted fishing
permit (EFP) activities. The Council also recommended, and NMFS is
proposing, an annual catch target (ACT) of 3,600 mt for the 2023-2024
fishing year. For comparison, the ABC/ACL and ACT established last year
were 4,274 mt and 3,800 mt, respectively. Although the biomass estimate
and OFL are the same this year, the proposed ABC/ACL and ACT for the
2023-2024 fishing year are lower due to uncertainty and staleness of
the assessment and biomass estimate.
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\1\ For the 2023-2024 fishing year, the Quinault Indian Nation
has not requested a tribal set-aside, and therefore none is
proposed.
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In conjunction with setting an ACT, the Council also recommended
in-season and other management measures to ensure harvest opportunity
under the ACT is maintained throughout the year, which are discussed in
the next section.
Recommended Management Measures
The proposed annual harvest limits and management measures were
developed in the context of NMFS' July 2019 declaration that the
Pacific sardine stock was overfished and June 2021 approval of a
rebuilding plan for the stock. Because the biomass remains below the
50,000 mt MSST, the FMP
[[Page 31216]]
requires that incidental catch of Pacific sardine in other CPS
fisheries be limited to an incidental allowance of no more than 20
percent by weight (instead of a maximum of 40 percent allowed when
below the CUTOFF but above the MSST).
The following are the proposed management measures and in-season
accountability measures for the Pacific sardine 2023-2024 fishing year:
(1) If landings in the live bait fishery reach 2,500 mt of Pacific
sardine, then a 1-mt per-trip limit of sardine would apply to the live
bait fishery.
(2) An incidental per-landing limit of 20-percent (by weight)
Pacific sardine applies to other CPS primary directed fisheries (e.g.,
Pacific mackerel).
(3) If the ACT of 3,600 mt is attained, then a 1-mt per-trip limit
of Pacific sardine would apply to all CPS fisheries (i.e., 1) and 2)
would no longer apply).
(4) An incidental per-landing allowance of 2 mt of Pacific sardine
would apply to non-CPS fisheries until the ACL is reached.
At the April 2023 meeting, the Council also recommended NMFS
approve two EFP proposals requesting an exemption from the prohibition
to directly harvest sardine during their discussion of sardine
management measures. Those EFP proposals include a total amount of up
to 670 mt of the ACL.
All sources of catch including any fishing occurring as part of an
EFP, the live bait fishery, and other minimal sources of harvest, such
as incidental catch in CPS and non-CPS fisheries and minor directed
fishing, will be accounted for against the ACT and ACL.
The NMFS West Coast Regional Administrator would 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 would make announcements through other
means available, including emails to fishermen, processors, and state
fishery management agencies.
Classification
Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant
Administrator has determined that this proposed rule is consistent with
the CPS FMP, other provisions of the MSA, and other applicable law,
subject to further consideration after public comment.
NMFS finds that a 15-day comment period for this action provides a
reasonable opportunity for public participation in this action pursuant
to Administrative Procedure Act section 553(c) (5 U.S.C. 553(c)), while
also ensuring that the final specifications are in place for the start
of the Pacific sardine fishery on July 1, 2023. NMFS received the
recommendations from the Council that form the basis for this rule
after the Council's April 2023 meeting. The Council provided an
opportunity for public comment at that meeting, as it does every year
before adopting the recommended harvest specifications and management
measures for the proceeding fishing year. The subject of this proposed
rule--the establishment of the reference points--is considered a
routine action, because they are calculated annually based on the
framework control rules in the FMP. A prolonged comment period and
subsequent potential delay in implementation past the start of the 2023
fishing year would be contrary to the public interest, as it could
create confusion in the Pacific sardine industry around current
specifications and management measures.
This proposed rule is exempt from review under Executive Order
12866.
Pursuant to Executive Order 13175, this proposed 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.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities,
for the following reasons:
For Regulatory Flexibility Act (RFA) purposes only, NMFS has
established a small business size standard for businesses, including
their affiliates, whose primary industry is commercial fishing (see 50
CFR 200.2). A business primarily engaged in commercial fishing (NAICS
code 11411) is classified as a small business if it is independently
owned and operated, is not dominant in its field of operation
(including its affiliates), and has combined annual receipts not in
excess of $11 million for all its affiliated operations worldwide.
The purpose of this proposed rule is to conserve and rebuild the
Pacific sardine stock by preventing overfishing, while still allowing
harvest opportunity among differing fishery sectors. This will be
accomplished by implementing the 2023-2024 annual specifications for
Pacific sardine in the U.S. EEZ off the West Coast. The small entities
that would be affected by the proposed action are the vessels that
would be expected to harvest Pacific sardine as part of the West Coast
CPS small purse seine fleet. In 2014, the last year that a directed
fishery for Pacific sardine was allowed, there were approximately 81
vessels permitted to operate in the directed sardine fishery component
of the CPS fishery off the U.S. West Coast; 58 vessels in the Federal
CPS limited entry fishery off California (south of 39[deg] N lat.); and
a combined 23 vessels in Oregon and Washington's state Pacific sardine
fisheries. We do not collect or have access to information about
affiliation between vessels or affiliation between vessels and
processing entities in this fishery, or receipts in Alaska, Hawaii, or
international fisheries, so it is possible that some impacted entities
may exceed $11 million in ex-vessel revenue or another size-standard
threshold. Based on available data, the average annual West Coast
revenue per vessel for all west coast vessels, including those
described above potentially affected by this rule, was well below the
threshold level of $11 million as of 2023; therefore, all of these
vessels are considered small businesses under the RFA. Because each
affected vessel is a small business, this proposed rule is considered
to equally affect all of these small entities in the same manner.
Therefore, this rule would not create disproportionate costs between
small and large vessels/businesses.
The CPS FMP and its implementing regulations require NMFS to
annually set an OFL, ABC, ACL, and HG or annual catch target for the
Pacific sardine fishery based on the specified harvest control rules in
the FMP applied to the current stock biomass estimate for that year.
The derived annual HG is the level typically used to manage the
principal commercial sardine fishery and is the harvest level NMFS
typically uses for profitability analysis each year. As stated above,
the CPS FMP dictates that when the estimated biomass drops below a
certain level (150,000 mt), the HG is zero. Because there is again no
directed fishing for the 2023-2024 fishing year, this proposed rule
will not change the potential profitability compared to the previous
fishing year. Additionally, the proposed 2023-2024 ACL is still
expected to account for the various fishery sector needs (i.e., live
bait, incidental catch in other CPS fisheries, and minor directed
fisheries).
The revenue derived from harvesting Pacific sardine is typically
only one of the sources of fishing revenue for the commercial vessels
that participate in this fishery. As a result, the economic impact to
the fleet from the proposed action cannot be viewed in isolation. From
year to year, depending on market
[[Page 31217]]
conditions and availability of fish, most CPS/sardine vessels
supplement their income by harvesting other species. Many vessels in
California also harvest anchovy, mackerel, and in particular, squid,
making Pacific sardine only one component of a multi-species CPS
fishery. Additionally, some sardine vessels that operate off of Oregon
and Washington also fish for salmon in Alaska or squid in California
during times of the year when sardine are not available. The purpose of
the incidental catch limits proposed in this action are to ensure the
vessels impacted by a prohibition on directly harvesting sardine can
still access these other profitable fisheries while still minimizing
Pacific sardine harvest.
CPS vessels typically rely on multiple species for profitability
because abundance of Pacific sardine, like the other CPS stocks, is
highly associated with ocean conditions and seasonality. Variability in
ocean conditions and season results in variability in the timing and
location of CPS harvest throughout the year. Because each species
responds to ocean conditions in its own way, not all CPS stocks are
likely to be abundant at the same time. Therefore, as abundance levels
and markets fluctuate, the CPS fishery as a whole has relied on a group
of species for its annual revenues.
Therefore the proposed action, if adopted, will not have a
significant economic impact on a substantial number of small entities.
As a result, an Initial Regulatory Flexibility Analysis is not
required, and none has been prepared.
This action does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act. There are no
relevant Federal rules that may duplicate, overlap, or conflict with
the proposed action.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 10, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-10322 Filed 5-15-23; 8:45 am]
BILLING CODE 3510-22-P
