[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Proposed Rules]
[Pages 13858-13861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06790]
[[Page 13858]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 190215127-9273-01]
RIN 0648-BI73
Fisheries Off West Coast States; Coastal Pelagic Species
Fisheries; Multi-Year Harvest Specifications for the Central
Subpopulation of Northern Anchovy
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS issues this proposed rule to revise the annual reference
points, including the overfishing limit (OFL), acceptable biological
catch (ABC) and annual catch limit (ACL), for the central subpopulation
of northern anchovy in the U.S. exclusive economic zone off the Pacific
coast under the Coastal Pelagic Species (CPS) Fishery Management Plan
(FMP). NMFS prepared this rulemaking in response to a January 2018
court decision (Oceana, Inc. v. Ross) that vacated the OFL, ABC, and
ACL for the central subpopulation of northern anchovy, followed by
subsequent orders requiring NMFS to establish a new OFL, ABC, and ACL
through notice and comment rulemaking. NMFS is proposing an OFL of
94,290 metric tons (mt), an ABC of 23,573 mt, and an ACL of 23,573 mt.
If the ACL for this stock is reached or projected to be reached, then
fishing will be closed until it reopens at the start of the next
fishing season. This rule is intended to conserve and manage the
central subpopulation of northern anchovy off the U.S. West Coast.
DATES: Comments must be received by April 23, 2019.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2019-0021 by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0021, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Barry A. Thom, Regional
Administrator, West Coast Region, NMFS, 501 W Ocean Blvd., Ste. 420,
Long Beach, CA 90802-4250; Attn: Joshua Lindsay.
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).
FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, West Coast Region,
NMFS, (562) 980-4034.
SUPPLEMENTARY INFORMATION: The CPS fishery in the U.S. exclusive
economic zone (EEZ) off the West Coast is managed under the CPS FMP.
The Pacific Fishery Management Council (Council) developed the FMP
pursuant to the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. The six species
managed under the CPS FMP are Pacific sardine, Pacific mackerel, jack
mackerel, northern anchovy (northern and central subpopulations),
market squid, and krill. The CPS FMP is implemented by regulations at
50 CFR part 660, subpart I.
Management unit stocks in the CPS FMP are classified under three
management categories: Active, monitored, and prohibited harvest
species. Stocks in the active category (Pacific sardine and Pacific
mackerel) are managed under catch limits set using regular stock
assessments and periodic or annual adjustments of target harvest levels
based on those stock assessments. Fisheries for these stocks have
biologically significant levels of catch, or biological or
socioeconomic considerations requiring this type of relatively intense
harvest management procedures. In contrast, stocks in the monitored
category (jack mackerel, northern anchovy, and market squid \1\), are
managed under long-term catch limits and annual qualitative reviews of
available abundance data without regular stock assessments or annual
adjustments to target harvest levels. Fisheries for monitored stocks do
not have biologically significant catch levels and, therefore, do not
require intensive harvest management. As a result, monitored stocks
have been adequately managed by tracking landings and examining
available abundance indices. Species in both categories may be subject
to management measures such as catch allocation, gear regulations,
closed areas or closed seasons. For example, trip limits and a limited
entry permit program apply to all CPS finfish. The prohibited harvest
species category is comprised only of krill, which is subject to a
complete prohibition on targeting and retention.
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\1\ Market squid is statutorily exempt from the general
requirement to be managed using an ACL because of its short life-
cycle.
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In September 2011, NMFS approved Amendment 13 to the CPS FMP, which
modified the framework process used to set and adjust fishery
specifications and for setting ACLs and accountability measures (AMs).
Amendment 13 conformed the CPS FMP with the 2007 amendments to the
Magnuson-Stevens Act and the Magnuson-Stevens Act National Standard 1
(NS1) guidelines at 50 CFR 600.310, which for the first time required
ACLs be established for management unit species (with exceptions).
Specifically, Amendment 13 maintained the existing reference points and
the primary harvest control rules for the monitored stocks (jack
mackerel, northern anchovy and market squid), including the large
uncertainty buffer built into the ABC control rule for the finfish
stocks. Amendment 13 established a management framework under which the
OFL for each monitored stock is set equal to its existing maximum
sustainable yield (MSY) value, if available, and ABC values are set at
25 percent of OFL, to provide a 75-percent scientific uncertainty
buffer. ACLs are then set either equal to or lower than the ABC; annual
catch targets (ACTs), if deemed necessary, can be set less than or
equal to the ACL, primarily to account for potential management
uncertainty.
Compared to the management framework for stocks in the active
category, which uses annual estimates of biomass to calculate annual
harvest levels, the ACLs for the monitored finfish stocks are not based
on annual estimates of biomass or any single estimate of biomass. As
described above, ACLs for monitored finfish are set at the ABC levels,
which are no higher than 25 percent of the OFL. OFLs are set equal to
estimates of MSY--an estimate that is intended to reflect the largest
average fishing mortality rate or yield that can be taken from a stock
over the long term if contained in the CPS FMP or set based on a stock
specific method if deemed more appropriate.
[[Page 13859]]
Although the control rules and harvest policies for monitored CPS
stocks are simpler than the active category control rules, the
inclusion of a large non-discretionary buffer between the OFL and ABC
both protects the stock from overfishing and allows for a relatively
small sustainable harvest. In recognition of the low fishing effort and
landings for these stocks, the Council chose this type of passive
management framework for some finfish stocks in the FMP because it has
proven sufficient to prevent overfishing while allowing for sustainable
annual harvests, even when the year-to-year biomasses of these stocks
fluctuate.
On January 18, 2018, in Oceana v. Ross, the U.S. District Court for
the Northern District of California granted summary judgment to Oceana,
vacating OFL, ABC, ACL for the central subpopulation of northern
anchovy (hereafter, simply ``central anchovy''). This ruling, as well
as subsequent court rulings require NMFS to re-establish these
reference points through a final rule no later than late May.
Therefore, NMFS proposes to implement a new OFL, ABC and ACL that would
be in effect beginning in the 2019 fishing year and that would remain
in place until new scientific information becomes available to warrant
changes.
To determine these new reference points, NMFS reviewed existing
data sources, including historical estimates of biomass from the last
stock assessment NMFS completed for central anchovy in 1995, as well as
more recent NMFS estimates of relative abundance and analyses for
determining a new long-term OFL for central anchovy, to use within the
FMP's default ABC control rule for monitored stocks. We determined that
an OFL and ABC that deviated from the management approach set in the
FMP for stocks in the monitored category would be beyond the scope of
this rulemaking.
After this review, NMFS determined that with the limited time to
review and analyze complex approaches for setting these reference
points, the most appropriate path at this time for setting an OFL for
central anchovy in accordance with the FMP is to use an approach
similar to the approach used by the Council, and approved by NMFS, for
developing reference points for OFL and ABC for the northern
subpopulation of northern anchovy (NSNA) in 2010. When the Council
developed the OFL and ABC for NSNA a numerical MSY value was not
available to set as the OFL. Therefore, instead of basing the OFL on an
estimate of MSY, the OFL was calculated by multiplying the average of
the only two available biomass estimates by the FMSY (i.e.,
fishing mortality at MSY) used for Pacific mackerel in the CPS FMP.
Pacific mackerel was deemed an appropriate fishing mortality proxy
because the life history characteristics of NSNA should allow it to
support a fishing rate at least as high as Pacific mackerel while
sustaining the population. The established uncertainty buffer of 75
percent was then applied to calculate the ABC for NSNA.
Consistent with the approach used to set the NSNA reference points,
the proposed OFL, ABC, and ACL in this rule are based on averaging
three of the available four recent estimates of the relative abundance
for central anchovy from NMFS surveys and an estimate of the rate of
fishing mortality for central anchovy at MSY.\2\ The abundance
estimates are from the 2016 and 2018 NMFS acoustic-trawl method (ATM)
surveys, which are 151,558 mt and 723,826 mt respectively and the 2017
NMFS daily egg production method (DEPM) survey, which is 308,173 mt. An
ATM estimate was also available for 2017. However, NMFS evaluated the
2017 estimate compared to the other ATM estimates, and decided, for
this rulemaking, to exclude it from the analysis to generate catch
limits. The reason for this was that the ATM survey in the summer of
2017 was focused off the northern portion of the U.S. West Coast as
well as the west coast of Vancouver Island, British Columbia, Canada,
and was not designed to sample the complete range of central anchovy.
The principle objectives of this survey were to gather data on the
northern stock of Pacific sardine, and to some extent, the northern
stock of northern anchovy, and therefore the survey chose not to sample
south of Morro Bay, California, which is area where central anchovy are
typically found.
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\2\ The calculation uses an EMSY, which is the
exploitation rate for deterministic equilibrium MSY.
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The fishing mortality rate estimate is from analysis the SWFSC
completed in 2016 as part of an effort examining minimum stock size
thresholds for CPS. This analysis used the most current time-series
data available for potentially deriving an FMSY which comes
from the last model-based stock assessment for central anchovy
completed for formal management purposes (Jacobson et al. 1995). This
analysis produced estimates of FMSY based on eight
alternative models. We have used the average of the four best fitting
models from that work to calculate an EMSY of 0.239. The
methodology results in a proposed OFL of 94,290 metric tons (mt), an
ABC of 23,573 mt, and an ACL of 23,573 mt.
In determining whether to use the abundance estimates mentioned
above, we considered the fact that scientific reviews presented to the
Council at its April 2018 meeting stated that because the acoustic
estimates cannot be considered absolute estimates of biomass, two
things would need to occur before they are used to directly inform
management, unless they are used as a data source in an integrated
stock assessment model, including: Addressing the area shoreward of the
survey that is not sampled, and conducting a management strategy
evaluation to determine the appropriate way to incorporate an index of
abundance into a harvest control rule. However, because the acoustic
estimates represent recent information on the stock and can be
considered minimum estimates of the stock size, we are comfortable at
this time that using these estimates in a time series to set an OFL
will, in combination with reducing the OFL by 75 percent to set the ABC
and ACL, prevent overfishing. Therefore, NMFS determined that using
these ATM estimates in the manner described above, represent the best
available information for determining the proposed reference points in
this rule.
The Council developed, and NMFS approved, the monitored stock
management control rules and overfishing specification process as
consistent with the best scientific information available. Monitored
stock management, including the buffer between the OFL and ABC built
into the harvest policy for CPS stocks, appropriately accounts for the
various types of scientific uncertainty around the OFL estimate. NMFS
has determined that maintaining this approach for the proposed OFL and
ABC in this action is sufficient to prevent overfishing for the central
anchovy stock. We are proposing that the ACL be set equal to the ABC.
Setting a lower ACL or establishing an additional ACT to account for
management uncertainty is unnecessary because managers have the ability
to track the landings of this fishery and close the fishery if
necessary to ensure the ACL is not exceeded.
The proposed ACL would sufficiently limit harvests of central
anchovy on an annual basis and prevent overfishing, as each year the
total harvest of the stock will be assessed against the ACL. These
reference points would remain in place until changed according to the
FMP framework. If the ACL is reached the fishery would be closed until
the beginning of the next fishing season.
[[Page 13860]]
The NMFS West Coast Regional Administrator would publish a notice in
the Federal Register announcing the date of any such closure.
This action also proposes a minor revision to section Sec. 660.509
to clarify the NMFS West Coast Regional Administrator's authority to
close a CPS fishery by announcement in a notice published in the
Federal Register, per the CPS FMP, when an ACL is reached. Currently
this section describes the Regional Administrator's authority for
implementing in-season closures only when a directed fishery allocation
or incidental allocation is reached.
Classification
NMFS is issuing these proposed regulations under Magnuson-Stevens
Act Sec. 305(d), 16 U.S.C. 1855(d).
Pursuant to the procedures established to implement section 6 of
E.O. 12866, the Office of Management and Budget has determined that
this proposed rule is not significant.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the RFA (RFA). The IRFA describes the
economic impact this proposed rule, if adopted, would have on small
entities. A description of the action, why it is being considered, and
the legal basis for this action are contained at the beginning of this
section in the preamble and in the SUMMARY section of the preamble and
is not repeated here. The results of the analysis are stated below. A
copy of this analysis is available from NMFS (see ADDRESSES).
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 action being implemented through this proposed rule is the
establishment of a new OFL, ABC, and ACL for the central anchovy.
The small entities that would be affected by the proposed action
are the vessels that harvest central anchovy as part of the West Coast
CPS purse seine fleet. The average annual per vessel revenue in 2016
for the West Coast CPS finfish small purse seine fleet, as well as the
few vessels that target anchovy off of Oregon and Washington, was below
$11 million; 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.
To evaluate whether this proposed rule could potentially reduce the
profitability of affected vessels, NMFS compared current and average
recent historical landings to the proposed ACL (maximum fishing level
for each year). The proposed ACL for central anchovy is 23,573 mt. In
2018, approximately 17,040 mt of central anchovy were landed. The
annual average harvest from 2009 to 2018 for central anchovy was 7,020
mt. Central anchovy landings have been well below the proposed ACL in 8
of the past 10 years. Therefore, although the establishment of a new
ACL for this stock is considered a new management measure for the
fishery, and is lower than the previous ACL level of 25,000 mt, this
proposed action should not result in changes in current fishery
operations. As a result, it is unlikely that the ACL proposed in this
rule will limit the potential profitability to the fleet from catching
central anchovy and thus would not impose significant economic impacts.
The central anchovy fishery is a component of the CPS purse seine
fishery off the U.S. West Coast, which generally fishes a complex of
species that also includes the fisheries for Pacific sardine, Pacific
mackerel, jack mackerel, and market squid. Currently there are 58
vessels permitted in the Federal CPS limited entry fishery off
California. Annually, 32 of these 58 CPS vessels landed anchovy in
recent years.
CPS finfish vessels typically harvest a number of other species,
including Pacific sardine, Pacific mackerel, and market squid, making
the central anchovy fishery only one component of a multi-species CPS
fishery. Therefore, the revenue derived from this fishery is only part
of determining the overall revenue for a majority of the vessels in the
CPS fleet, and the economic impact to the fleet from the proposed
action cannot be viewed in isolation. CPS vessels typically rely on
multiple species for profitability because abundance of the central
anchovy stock, 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.
NMFS reviewed and evaluated other methods and data sources to
update the estimate of MSY or develop a new long-term OFL. However,
NMFS had limited time to fully review these types of methods;
therefore, an alternative such as this was not fully developed. The CPS
FMP also states that the ACL is set equal to the ABC or lower if
determined necessary to prevent overfishing or for other optimum yield
considerations not already build into the ABC control rule. The
proposed action sets the ACL equal to the ABC which is the maximum
level it can be set; other alternatives for the ACL could only set it
lower, creating a higher potential for negative economic impact on the
directly affected fishermen. Additionally, the proposed action
maintains the management approach set in the FMP for stocks in the
monitored category, which dictates how the OFL and ABC can be set,
thereby limiting the alternatives for these values.
Thus, no significant alternatives to this proposed rule exist that
would accomplish the stated objectives of the applicable statutes while
minimizing any significant economic impact of this proposed rule on the
affected small entities. However, as stated above, this proposed rule
is not expected to have a significant economic impact on the regulated
fishermen.
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: April 2, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 660 is
proposed to be amended as follows:
PART 660--FISHERIES OFF WEST COAST STATES
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1. The authority citation for part 660 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and
16 U.S.C. 7001 et seq.
0
2. In Sec. 660.509, paragraph (a) is revised to read as follows:
Sec. 660.509 Accountability measures (season closures).
(a) General rule. When the directed fishery allocation, incidental
allocation, annual catch limit is reached for any
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CPS species, the fishery for that CPS species will be closed until the
beginning of the next fishing period or season. The Regional
Administrator shall announce in the Federal Register the date of such
closure, as well as any incidental harvest level(s) recommended by the
Council and approved by NMFS.
* * * * *
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3. In Sec. 660.511, add paragraph (k) to read as follows:
Sec. 660.511 Catch restrictions.
* * * * *
(k) The following ACLs apply to fishing for monitored stocks of CPS
finfish:
(1) Northern Anchovy (Central Subpopulation): 23,573 mt.
(2) [Reserved]
[FR Doc. 2019-06790 Filed 4-5-19; 8:45 a.m.]
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