Federal Register / Vol. 77, No. 64 / Tuesday, April 3, 2012 / Proposed Rules 19991 

30 days after receiving comments from 

NMFS on the draft report. If no 

comments are received from NMFS, the 

draft report will be considered to be the 

final comprehensive monitoring report. 

§ 217.17 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

CRC must apply for and obtain a LOA. 

(b) A LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed the expiration date 

of these regulations. 

(c) If an LOA expires prior to the 

expiration date of these regulations, 

CRC must apply for and obtain a 

renewal of the LOA. 

(d) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, CRC must apply for and obtain a 

modification of the LOA as described in 

§ 217.18 of this chapter. 

(e) The LOA shall set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(f) Issuance of the LOA shall be based 

on a determination that the level of 

taking will be consistent with the 

findings made for the total taking 

allowable under these regulations. 

(g) Notice of issuance or denial of a 

LOA shall be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.18 Renewals and Modifications of 

Letters of Authorization. 

(a) A LOA issued under § 216.106 and 

§ 217.17 of this chapter for the activity 

identified in § 217.11(a) of this chapter 

shall be renewed or modified upon 

request by the applicant, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for these 

regulations (excluding changes made 

pursuant to the adaptive management 

provision in § 217.18(c)(1) of this 

chapter), and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under these regulations were 

implemented. 

(b) For LOA modification or renewal 

requests by the applicant that include 

changes to the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in § 217.18(c)(1) 

of this chapter) that do not change the 

findings made for the regulations or 

result in no more than a minor change 

in the total estimated number of takes 

(or distribution by species or years), 

NMFS may publish a notice of proposed 

LOA in the Federal Register, including 

the associated analysis illustrating the 

change, and solicit public comment 

before issuing the LOA. 

(c) A LOA issued under § 217.106 and 

§ 217.17 of this chapter for the activity 

identified in § 217.11(a) of this chapter 

may be modified by NMFS under the 

following circumstances: 

(1) Adaptive Management—NMFS 

may modify (including augment) the 

existing mitigation, monitoring, or 

reporting measures (after consulting 

with CRC regarding the practicability of 

the modifications) if doing so creates a 

reasonable likelihood of more 

effectively accomplishing the goals of 

the mitigation and monitoring set forth 

in the preamble for these regulations. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA: 

(A) Results from CRC’s monitoring 

from the previous year(s). 

(B) Results from other marine 

mammal and/or sound research or 

studies. 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent LOAs. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS will publish a notice 

of proposed LOA in the Federal 

Register and solicit public comment. 

(2) Emergencies—If NMFS determines 

that an emergency exists that poses a 

significant risk to the well-being of the 

species or stocks of marine mammals 

specified in § 217.13(b) of this chapter, 

an LOA may be modified without prior 

notice or opportunity for public 

comment. Notice would be published in 

the Federal Register within 30 days of 

the action. 

[FR Doc. 2012–7844 Filed 4–2–12; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 120312182–2170–01] 

RIN 0648–XA882 

Fisheries Off West Coast States; 

Coastal Pelagic Species Fisheries; 

Annual Specifications 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: NMFS proposes to implement 

the annual catch limit (ACL), harvest 

guideline (HG), and associated annual 

reference points for Pacific sardine in 

the U.S. exclusive economic zone (EEZ) 

off the Pacific coast for the fishing 

season of January 1, 2012, through 

December 31, 2012. This rule is 

proposed according to the Coastal 

Pelagic Species (CPS) Fishery 

Management Plan (FMP). The proposed 

2012 maximum HG for Pacific sardine is 

109,409 metric tons (mt). The proposed 

initial overall commercial fishing HG 

that is to be allocated across the three 

allocation periods for sardine 

management is 97,409 mt. This amount 

would be divided across the three 

seasonal allocation periods for the 

directed fishery the following way: 

January 1–June 30—33,093 mt; July 1– 

September 14—37,964 mt; and 

September 15–December 31—23,352 mt 

with an incidental set-aside of 1,000 mt 

for each of the three periods. This rule 

is intended to conserve and manage the 

Pacific sardine stock off the U.S. West 

Coast. 

DATES: Comments must be received by 

May 3, 2012. 

ADDRESSES: You may submit comments 

on this document identified by NOAA– 

NMFS–2012–0055 by any of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. To submit 

comments via the e-Rulemaking Portal, 

first click the ‘‘submit a comment’’ icon, 

then enter NOAA–NMFS–2012–0055 in 

the keyword search. Locate the 

document you wish to comment on 

from the resulting list and click on the 

‘‘Submit a Comment’’ icon on the right 

of that line. 

• Mail: Submit written comments to 

Rodney R. McInnis, Regional 

Administrator, Southwest Region, 


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NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802. 

• Fax: (562) 980–4047. 

Instructions: Comments must be 

submitted by one of the above methods 

to ensure that the comments are 

received, documented, and considered 

by NMFS. Comments sent by any other 

method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered. 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.) submitted 

voluntarily by the sender will 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). Attachments to electronic 

comments will be accepted in Microsoft 

Word or Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the report ‘‘Assessment of 

Pacific Sardine Stock for U.S. 

Management in 2012’’ and the 

Environmental Assessment/Regulatory 

Impact Review for this action may be 

obtained from the Southwest Regional 

Office (see ADDRESSES). 

FOR FURTHER INFORMATION CONTACT: 

Joshua Lindsay, Southwest Region, 

NMFS, (562) 980–4034. 

SUPPLEMENTARY INFORMATION: During 

public meetings each year, the estimated 

biomass for Pacific sardine is presented 

to the Pacific Fishery Management 

Council’s (Council) Coastal Pelagic 

Species (CPS) Management Team 

(Team), the Council’s CPS Advisory 

Subpanel (Subpanel) and the Council’s 

Scientific and Statistical Committee 

(SSC), and the biomass and the status of 

the fisheries are reviewed and 

discussed. The biomass estimate is then 

presented to the Council along with the 

calculated overfishing limit (OFL) and 

available biological catch (ABC), annual 

catch limit (ACL) and harvest guideline 

(HG) recommendations and comments 

from the Team, Subpanel and SSC. 

Following review by the Council and 

after hearing public comment, the 

Council adopts a biomass estimate and 

makes its catch level recommendations 

to NMFS. 

The purpose of this proposed rule is 

to implement the 2012 ACL, HG and 

other annual catch reference points, 

including an OFL and an ABC that takes 

into consideration uncertainty 

surrounding the current estimate of 

biomass for Pacific sardine in the U.S. 

EEZ off the Pacific coast. The CPS FMP 

and its implementing regulations 

require NMFS to set these annual catch 

levels for the Pacific sardine fishery 

based on the annual specification 

framework in the FMP. This framework 

includes a harvest control rule that 

determines the maximum HG, the 

primary management target for the 

fishery, for the current fishing season. 

The HG is based, in large part, on the 

current estimate of stock biomass. The 

harvest control rule in the CPS FMP is 

HG = [(Biomass-Cutoff) * Fraction * 

Distribution] with the parameters 

described as follows: 

1. Biomass. The estimated stock 

biomass of Pacific sardine age one and 

above for the 2012 management season 

is 988,385 mt. 

2. Cutoff. This is the biomass level 

below which no commercial fishery is 

allowed. The FMP established this level 

at 150,000 mt. 

3. Distribution. The portion of the 

Pacific sardine biomass estimated in the 

EEZ off the Pacific coast is 87 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 150,000 

mt that may be harvested. 

At the November 2011 Council 

meeting, the Council adopted the 2012 

Assessment of the Pacific sardine 

resource and a Pacific sardine biomass 

estimate of 988,385 mt. Based on 

recommendations from its SSC and 

other advisory bodies, the Council 

recommended and NOAA Fisheries 

(NMFS) is proposing, an overfishing 

limit of 154,781 mt, an acceptable 

biological catch (ABC) of 141,289 mt, an 

annual catch limit of 141,289 mt (equal 

to the ABC) and a maximum harvest 

guideline (HG) (HGs under the CPS FMP 

are operationally similar to annual catch 

targets (ACT)) of 109,409 metric tons 

(mt) for the 2012 Pacific sardine fishing 

year. These catch specifications are 

based on the most recent stock 

assessment and the control rules 

established in the CPS FMP. 

The Council also recommended, and 

NMFS is proposing, that 97,409 mt be 

used as the initial overall commercial 

fishing HG to be allocated across the 

three allocation periods for sardine 

management. This number has been 

reduced from the maximum HG by 

12,000 mt: (i) for potential harvest by 

the Quinault Indian Nation of up to 

9,000 mt; and (ii) 3,000 mt, which is 

initially reserved for potential use under 

an exempted fishing permit(s) (EFPs). 

The Council also recommended and 

NMFS is proposing that incidental catch 

set asides be put in place for each 

allocation period. The purpose of the 

incidental set-aside allotments and 

allowance of an incidental catch-only 

fishery is to allow for the restricted 

incidental landings of Pacific sardine in 

other fisheries, particularly other CPS 

fisheries, when a seasonal directed 

fishery is closed to reduce bycatch and 

allow for continued prosecution of other 

important CPS fisheries. These 

incidental set asides are allocated as 

shown in the following table, which 

also shows the adjusted directed harvest 

levels for each period in metric tons: 

January 1–June 

30 

July 1– 

September 14 

September 15– 

December 31 Total 

Total Seasonal Allocation .................................................................................... 34,093 (35%) 38,964 (40%) 24,352 (25%) 97,409 

Incidental Set Aside ............................................................................................. 1,000 1,000 1,000 3,000 

Adjusted Directed Harvest Allocation .................................................................. 33,093 37,964 23,352 94,409 

Although the 2012 HG is well below 

that of the ACL, additional inseason 

accountability measures are in place to 

ensure the fishery stays within the HG. 

If during any of the seasonal allocation 

periods the applicable adjusted directed 

harvest allocation is projected to be 

taken, fishing would be closed to 

directed harvest and only incidental 

harvest would be allowed. For the 

remainder of the period, any incidental 

Pacific sardine landings would be 

counted against that period’s incidental 

set-aside. The proposed incidental 

fishery would also be constrained to a 

30 percent by weight incidental catch 

rate when Pacific sardine are landed 

with other CPS so as to minimize the 

targeting of Pacific sardine. In the event 

that an incidental set-aside is projected 

to be attained, the incidental fishery 

will be closed for the remainder of the 

period. If the set-aside is not fully 

attained or is exceeded in a given 


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seasonal period, the directed harvest 

allocation in the following seasonal 

period would automatically be adjusted 

upward or downward accordingly to 

account for the discrepancy. 

Additionally, if during any seasonal 

period the directed harvest allocation is 

not fully attained or is exceeded, then 

the following period’s directed harvest 

total would be adjusted to account for 

the discrepancy, as well. 

If the total HG or these apportionment 

levels for Pacific sardine are reached or 

are expected to be reached, the Pacific 

sardine fishery would be closed until it 

re-opens either per the allocation 

scheme or at the beginning of the next 

fishing season. The NMFS Southwest 

Regional Administrator would publish a 

notice in the Federal Register 

announcing the date of any such 

closure. 

The Council will hear proposals and 

comments on any potential EFPs at the 

March 2012 Council meeting, and at the 

April 2012 Council meeting it will make 

a final recommendation to NMFS on 

whether or not all or a portion of the 

3,000 mt EFP set-aside should be 

allocated for use under any EFP(s). 

NMFS will likely make a decision on 

whether to issue an EFP for Pacific 

sardine sometime prior to the start of 

the second seasonal period (July 1, 

2012). Any of the 3,000 mt that is not 

issued to an EFP will be rolled into the 

third allocation period’s directed 

fishery. Any set-aside attributed to an 

EFP designed to be conducted during 

the closed fishing time in the second 

allocation period (prior to September 

15), but not utilized, will roll into the 

third allocation period’s directed 

fishery. Any set-aside attributed to an 

EFP designed to be conducted during 

closed fishing times in the third 

allocation, but not utilized, will not be 

re-allocated. 

In response to a request by the 

Quinault Indian Nation for the exclusive 

right to harvest Pacific sardine in 2012 

in their Usual and Accustomed Fishing 

Area off the coast of Washington State, 

pursuant to their rights to fish under the 

1856 Treaty of Olympia (Treaty with the 

Quinault), the Council recommended 

and NMFS approved an allocation of 

9,000 mt of sardine to the Quinault in 

2012. NMFS will consult with Quinault 

Department of Fisheries staff and 

Quinault Fisheries Policy 

representatives on or near September 1, 

2012 to review Quinault catch to-date, 

Oregon and Washington catch to-date 

and any other relevant information in an 

attempt to project tribal catch for the 

remainder of the season. The purpose of 

this consultation will be to determine 

whether any part of the 2012 Quinault 

Pacific sardine set-aside of 9,000 mt will 

be moved into the non-tribal third 

period allocation that begins September 

15. 

Detailed information on the fishery 

and the stock assessment are found in 

the report ‘‘Assessment of the Pacific 

Sardine Resource in 2011 for U.S. 

Management in 2012’’ (see ADDRESSES). 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, the 

NMFS Assistant Administrator has 

determined that this proposed rule is 

consistent with the CPS FMP, other 

provisions of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, and other applicable law, subject to 

further consideration after public 

comment. 

These proposed specifications are 

exempt from review under Executive 

Order 12866. 

Pursuant to the Regulatory Flexibility 

Act (RFA), 5 U.S.C. 605(b), 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 2012 annual 

specifications for Pacific sardine in the 

U.S. EEZ off the Pacific coast. The CPS 

FMP and its implementing regulations 

require NMFS to set an OFL, ABC, ACL 

and HG or ACT for the Pacific sardine 

fishery based on the harvest control 

rules in the FMP. The specific harvest 

control rule is applied to the current 

stock biomass estimate to derive the 

annual HG which is used to manage the 

directed commercial take of Pacific 

sardine. 

The HG is apportioned based on the 

following allocation scheme: 35 percent 

of the HG is allocated coastwide on 

January 1; 40 percent of the HG, plus 

any portion not harvested from the 

initial allocation is then reallocated 

coastwide on July 1; and on September 

15 the remaining 25 percent, plus any 

portion not harvested from earlier 

allocations will be released. If the total 

HG or these apportionment levels for 

Pacific sardine are reached at any time, 

the Pacific sardine fishery will close 

until either it re-opens per the allocation 

scheme or the beginning of the next 

fishing season. There is no limit on the 

amount of catch that any single vessel 

can take during an allocation period or 

the year; the HG and seasonal 

allocations are available until fully 

utilized by the entire CPS fleet. 

The U.S. Small Business 

Administration defines small businesses 

engaged in fishing as those vessels with 

annual revenues of or below $4 million. 

The small entities that would be 

affected by the proposed action are the 

vessels that compose the West Coast 

CPS finfish fleet. Approximately 108 

vessels are permitted to operate in the 

sardine fishery component of the CPS 

fishery off the U.S. West Coast; 64 

permits in the Federal CPS limited entry 

fishery off California (south of 39 N. 

lat.), and a combined 44 permits in 

Oregon and Washington’s state Pacific 

sardine fisheries. The average annual 

per vessel revenue in 2010 for the West 

Coast CPS finfish fleet was well below 

$4 million; therefore, all of these vessels 

therefore are considered small 

businesses under the RFA. Because each 

affected vessel is a small business, this 

proposed rule has an equal effect on all 

of these small entities, and therefore 

will impact these small entities in the 

same manner. Accordingly, 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. NMFS used average Pacific 

sardine ex-vessel price per mt to 

conduct a profitability analysis because 

cost data for the harvesting operations of 

CPS finfish vessels was unavailable. 

For the 2011 fishing year the HG was 

set at 50,526 mt. Approximately 47,000 

mt (28,000 in California and 19,000 in 

Oregon and Washington) of this HG 

were harvested during the 2011 fishing 

season, for an estimated ex-vessel value 

of $10 million. Using these figures, the 

average 2011 ex-vessel price per mt of 

Pacific sardines was approximately 

$200. 

The proposed HG for the 2012 Pacific 

sardine fishing season (January 1, 2012 

through December 31) is 109,409 metric 

tons (mt). This HG is 66 percent higher 

than the HG for 2011. If the fleet were 

to take the entire 2012 HG, and 

assuming a coastwide average ex-vessel 

price per mt of $190 (average of 2010 

and 2011 ex-vessel), the potential 

revenue to the fleet would be 

approximately $21 million. Therefore 

the proposed rule will increase small 

entities’ profitability compared to last 

season, due to the much higher HG this 

fishing season. Whether this will occur 

will depend somewhat on market forces 

within the fishery, and on the regional 

availability of the resource to the fleets 

and the fleets’ ability to find pure 


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schools of Pacific sardine. A change in 

the market rate and/or the potential lack 

of availability of the resource to the 

fleets could cause a reduction in the 

amount of Pacific sardine that is 

harvested which, in turn, would reduce 

the potential total revenue to the fleet 

from Pacific sardine. However, due to 

the large increase in the HG compared 

to last year, even if changes in the 

market value occur, the fishery is likely 

to see an increase in total revenue 

compared last season. Additionally, 

unused sardine from the potential EFP 

or from the 9,000-mt set-aside for use by 

the Quinault Indian Nation, might be 

used to supplement the amount 

available to the directed fishery of the 

third allocation period (September 15 

through December 31). 

The revenue derived from harvesting 

Pacific sardine is also only one factor 

determining the overall revenue for a 

majority of the vessels in the CPS fleet, 

and, therefore, the economic impact to 

the fleet from the proposed action 

cannot be viewed in isolation. CPS 

finfish vessels typically harvest a 

number of other species, including 

anchovy, mackerel, squid, and tuna, 

making Pacific sardine only one 

component of a multi-species CPS 

fishery. Vessels rely on multiple species 

for profitability because each CPS stock 

is highly associated with different ocean 

conditions and different time periods, 

and so are harvested at various times 

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 relies on a group of species for 

annual revenues. Accordingly, even if 

sardine prices drop, such a drop will 

have only a small impact, if at all, on 

the profits of CPS fishery vessels. 

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. 

There are no reporting, recordkeeping, or other compliance 

requirements required by this proposed 

rule. Additionally, no other Federal 

rules duplicate, overlap or conflict with 

this proposed rule. 

This action does not contain a 

collection-of-information requirement 

for purposes of the Paper Reduction Act. 

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

Dated: March 29, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2012–7986 Filed 4–2–12; 8:45 am] 

BILLING CODE 3510–22–P 


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