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Proposed Rule

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

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


Proposed rule.


NMFS proposes a regulation to adjust the harvest specifications for Pacific sardine in the U.S. exclusive economic zone (EEZ) off the Pacific coast for the fishing season of January 1, 2009, through December 31, 2009. The proposed action would increase the tonnage of Pacific sardine allocated for industry conducted research from 1200 metric tons (mt) to 2400 mt and decreases the second and third period directed harvest allocations by 750 mt and 450 mt, respectively.


Comments must be received by June 5, 2009.


You may submit comments on this proposed rule identified by 0648-XO74 by any of the following methods:

  • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal
  • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
  • Fax: (562)980-4047

Instructions: All comments received are a part of the public record and will generally be posted to without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields if you prefer to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Start Further Info


Joshua Lindsay, Southwest Region, NMFS, (562) 980-4034.

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On February 20, 2009, NMFS published a final rule implementing the harvest guideline (HG) and annual specifications for the 2009 Pacific sardine fishing season off the U.S. West Coast (74 FR 7826) under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq (Magnuson-Stevens Act). These specifications and associated management measures were based on recommendations adopted by the Pacific Fishery Management Council (Council) at their November 2008 public meeting in San Diego, California (73 FR 60680). For the 2009 Pacific sardine fishing season, the Council adopted, and NMFS approved, an acceptable biological catch (ABC) or maximum HG of 66,932 mt. This ABC/HG was determined according to the regulations implementing the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP)(50 CFR part 660, subpart I). The Council also recommended, and NMFS approved, that 1,200 mt be initially subtracted from the ABC and reserved for an industry-conducted research project, which is planned but not yet approved. This 1,200 mt set-aside was intended to allow research fishing, which is planned for the second seasonal period (July 1—September 15, 2009), to continue if that period's allocation is reached and directed fishing is closed. As stated in the final rule implementing the 2009 specifications, the use of the 1,200 mt would require NMFS to issue an Exempted Fishing Permit (EFP) because fishing would occur after the directed fishery is closed.

At the Council's March 2009 public meeting the Council reviewed two industry research/EFP proposals for conducting Pacific sardine biomass surveys and moved the two proposals forward for public comment with the recommendation that industry combine the proposals to create a single EFP application to be reviewed for final adoption at the June 2009 Council meeting. After hearing the research proposals and public comment, the Council then recommended that the original 1200 mt set-aside be increased to 2400 mt. To account for the additional 1,200 mt, the Council recommended that the second and third period directed fishery allocations be reduced by 750 mt and 450 mt respectively. This is approximately a proportional reduction in the two allocations.

NMFS will publish a notice in the Federal Register requesting comments on the proposed EFP in the near future and a decision on whether to issue an EFP for the use of the research set-aside will be made prior to the start of the second seasonal period (July 1, 2009). If NMFS determines that an EFP cannot be issued, then the set-aside -either the current 1,200 mt or the proposed 2,400 mt-will be re-allocated to the third period's directed harvest allocation.


Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

These proposed specifications are exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

The purpose of this proposed action is to make minor modifications to the 2009 Pacific sardine specifications. This proposed rule does not make significant changes to those specifications, which were implemented through proposed and final rulemaking and for which an Initial and a Final Regulatory Flexibility Analysis was completed.

The small entities that would be affected by the proposed action are the 63 vessels that compose the West Coast CPS finfish fleet. These vessels are considered small business entities by the U.S. Small Business Administration because the vessels do not have annual receipts in excess of $4.0 million. Therefore, there would be no economic impacts resulting from disproportionality between small and large business entities under the proposed action.

The profitability of these vessels as a result of this proposed rule is based on the average Pacific sardine ex-vessel price per mt. When the 2009 Pacific sardine specifications were implemented it was determined that if the fleet were to take the entire 2009 Pacific sardine HG of 65,732 metric tons (mt), the potential revenue to the fleet would be approximately $11 million. This proposed action has the potential, if an Exempted Fishing Permit is approved at a later date, to reduce the available HG by 1200 mt (750 mt in the second period and 450 mt in the third period) and potential fleet revenue by $168,000. However, over the course of the fishing season these amounts represent very small portions of the overall allowable harvest and equal less than half the amount taken by the fleet in a normal fishing day. Therefore the potential drop in profitability to fleet overall would be small. Furthermore, even the re-allocated 1200 mt of sardine would be sold commercially by members of the fleet, also small business entities, operating under an exempted fishing permit.

Based on the disproportionality and profitability analysis above, this rule if adopted, will not have a significant economic impact on a substantial number of these small entities.

As a result, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.

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

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Dated: April 30, 2009.

James W. Balsiger,

Acting Assistant Administrator For Fisheries, National Marine Fisheries Service.

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[FR Doc. E9-10506 Filed 5-5-09; 8:45 am]