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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 0909111273-91274-01]
          - RIN 0648-XR09

# AGENCY:

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

# ACTION:

 Proposed rule.

# SUMMARY:

                         NMFS proposes a regulation to implement the annual harvest guideline (HG) for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the Pacific coast. This HG is proposed according to the regulations implementing the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP) and establishes allowable harvest                               ( print page 49846)                            levels for Pacific mackerel off the Pacific coast. The proposed total HG for the 2009-2010 fishing year is 10,000 metric tons (mt) and is proposed to be divided into a directed fishery HG of 8,000 mt and an incidental fishery of 2,000 mt.                    

# DATES:

 Comments must be received by October 29, 2009.

# ADDRESSES:

You may submit comments on this proposed rule identified by 0648-XR09 by any one of the following methods:
      - Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov 
      - Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach,

CA 90802.
      - Fax: (562)980-4047, Att: Joshua Lindsay

                        Instructions: All comments received are a part of the public record and will generally be posted to                         *http://www.regulations.gov*                         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 wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. 

                        Copies of the report                         *Pacific Mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2009-2010 Fishing Year*                         may be obtained from the Southwest Regional Office (see                         **ADDRESSES**                        ).                    

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION:

The CPS FMP, which is implemented by regulation at 50 CFR part 660, subpart I, divides management unit species into two categories: actively managed and monitored. The HGs for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates.

                    During public meetings each year, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Pacific Council) Coastal Pelagic Species Management Team (Team), the Council's Coastal Pelagic Species Advisory Subpanel (Subpanel) and the CPS Subcommitee of the Scientific and Statistical Committee (SSC). At that time, the biomass, the acceptable biological catch (ABC) and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with HG recommendations and comments from the Team and Subpanel. Following review by the Council and after hearing public comments, the Council makes its HG recommendation to NOAA's National Marine Fisheries Service (NMFS). The annual HG is published in the                     **Federal Register**                     as close as practicable to the start of the fishing season.                

For the 2009-2010 Pacific mackerel management season a full assessment for Pacific mackerel was conducted and then reviewed by a Stock Assessment Review (STAR) Panel in May 2009. This most recent full assessment for Pacific mackerel estimates the current biomass to be 282,049 mt. Based on this estimated biomass, the harvest control rule in the CPS FMP produces an ABC of 55,408 mt.

At the June 2009 Pacific Council Meeting, the Council reviewed the current Pacific mackerel stock assessment, biomass numbers, ABC and STAR Panel Report, as well as heard statements/reports from the SSC, Team and Subpanel. Although the assessment for Pacific mackerel was reviewed by a STAR Panel and was approved by the SSC as the best available science for use in management, concerns were expressed by all the advisory groups regarding the data sources that informed the assessment and the uncertainty in the assessment results. Taking into consideration these reports and statements, the Council adopted the most recent assessment for Pacific mackerel along with the calculated ABC, but recommended setting an overall HG for the July 1, 2009 through June 30, 2010 fishing season at 10,000 mt. The Council also recommended that 8,000 mt of this total HG be allocated for a directed fishery and 2,000 mt be set-aside for incidental Pacific mackerel landings in other fisheries should the 8,000 mt directed fishery HG be attained. Should the directed Pacific mackerel fishery attain landings of 8,000 mt, the Council recommends that NMFS close the directed fishery and establish a 45 percent incidental catch allowance when Pacific mackerel are landed with other CPS (no more than 45% by weight of the CPS landed per trip may be Pacific mackerel), except that up to 1 mt of Pacific mackerel can be landed without landing any other CPS.

                    Information on the fishery and the stock assessment can be found in the report                     *Pacific mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2009-10 Fishing Season*                     (see                     **ADDRESSES**                    ).                 

The harvest control rule formula in the FMP uses the following factors to determine the ABC:

                    1.                     *Biomass.*                     The estimated stock biomass of Pacific mackerel age one and above for the 2009-2010 management season is 282,049 mt.                

                    2.                     *Cutoff.*                     This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 18,200 mt.                

                    3.                     *Distribution.*                     The portion of the Pacific mackerel biomass estimated in the U.S. EEZ off the Pacific coast is 70 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.                

                     4.                     *Fraction.*                     The harvest fraction is the percentage of the biomass above 18,200 mt that may be harvested. The FMP established this at 30 percent.                 

## Classification 

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 rule is to implement the 2009-2010 HG for Pacific mackerel in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an annual HG for the Pacific mackerel fishery based on the harvest formula in the FMP. The harvest formula is applied to the current stock biomass estimate to determine the ABC, from which the HG is then derived. 

                        Pacific mackerel harvest is one component of CPS fisheries off the U.S. West Coast which primarily includes the fisheries for Pacific sardine, northern anchovy, jack mackerel and market squid. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 N. latitude; Point Arena, California) of the fishery. Sixty vessels are currently permitted in the Federal CPS limited entry fishery off California. These vessels are considered small business entities by the U.S. Small Business Administration since the vessels do not have annual receipts in excess of $4.0                               ( print page 49847)                            million. This proposed rule has an equal effect on all of these small entities. Therefore, there would be no disporportionate impacts on large and small business entities under the proposed action.                    

The profitability of these vessels as a result of this proposed rule is based on the average Pacific mackerel ex-vessel price per mt. NMFS used average Pacific mackerel ex-vessel price per mt to conduct a profitability analysis because cost data for the harvesting operations of CPS finfish vessels was unavailable.

During the 2007/2008 fishing year 6,200 mt of Pacific mackerel were landed with an estimated ex-vessel value of $900,000 and during the 2008/2009 fishing year approximately 4,000 mt were landed with an estimated exvessel value of $780,000. The proposed HG for the 2009/2010 Pacific mackerel fishing season (July 1, 2008 through June 30, 2009) is 10,000 mt. If the fleet were to take the entire 2009/2010 HG, and assuming no change in the coastwide average ex-vessel price per mt of $200, the potential revenue to the fleet would be approximately $2 million. 

The amount of Pacific mackerel caught each year depends greatly on market forces within the fishery, as well as the other CPS fisheries, and on the regional availability of the species to the fleet and the fleets' ability to easily find schools relatively close to port. If there is no change in market conditions (i.e., a lack in demand for Pacific mackerel product), it is not likely that the full HG will be taken during the 2009-2010 fishing year, in which case profits will be lower than if the entire HG were taken. Additionally, the potential lack of regional availability of the resource to the fleet can cause a reduction in the amount of Pacific mackerel that is harvested, in turn, potentially reducing the total revenue to the fleet. 

The annual average U.S. Pacific mackerel harvest from 2001/2002 to 2008/2009 is 5,584 mt with an average annual exvessel revenue of $929,419. Based on this catch and revenue history for Pacific mackerel over the last nine years NMFS does not anticipate a drop in profitability based on this rule, as the 2009/2010 available harvest (10,000 mt) is nearly twice the average catch during that time.

In addition, the revenue derived from harvesting Pacific mackerel is only one factor determining the overall revenue of the CPS fleet and therefore the economic impact to the fleet from the proposed action cannot be viewed in isolation. CPS vessels typically harvest a number of other species, including Pacific sardine, market squid, northern anchovy, and tuna, with the focus on Pacific sardine, which had an estimated ex-vessel of $14.5 million in 2008 and market squid which had an estimated ex-vessel of $26 million in 2008. Therefore Pacific mackerel is only a small component of this multi-species CPS fishery.

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.

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

Dated: September 23, 2009.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

[FR Doc. E9-23463 Filed 9-28-09; 8:45 am]

BILLING CODE 3510-22-S