[Federal Register Volume 84, Number 105 (Friday, May 31, 2019)]
[Rules and Regulations]
[Pages 25196-25202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11400]
[[Page 25196]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 190215127-9460-02]
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: Final rule.
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SUMMARY: NMFS is implementing this final rule to establish 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 (EEZ) off the Pacific coast under the
Coastal Pelagic Species Fishery Management Plan. 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 a notice
and comment rulemaking. NMFS is implementing 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: Effective July 1, 2019.
ADDRESSES: Copies of the Final Regulatory Flexibility Analysis are
available at NMFS West Coast Region, 501 W. Ocean Blvd., Suite 4200,
Long Beach, CA 90802.
FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, West Coast Region,
NMFS, (562) 980-4034.
SUPPLEMENTARY INFORMATION: The Coastal Pelagic Species (CPS) fishery in
the U.S. EEZ off the West Coast is managed under the CPS Fishery
Management Plan (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 regular 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
management category (jack mackerel, northern anchovy, and market squid
\1\), are managed under multi-year catch limits and annual reviews of
available abundance data without dictated 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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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. 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
while also meeting the goals and objectives of the CPS FMP including
helping to achieve optimum yield (OY). 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, Inc. 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,
in combination with subsequent court rulings, requires NMFS to submit
for publication a final rule re-establishing these reference points no
later than May 28, 2019. Therefore, NMFS is implementing through this
action a new OFL, ABC and ACL that will be in effect beginning in the
2019 fishing year and that would remain in place until new scientific
information becomes available to warrant changes. Additional details
about management framework for stocks in the CPS FMP, as well as the
process used to determine these new reference points, is discussed in
the proposed rule for this action (April 8, 2019; 84 FR 13858), and are
not repeated here.
NMFS determined that with the limited time available to review and
analyze more 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 an
OFL and ABC for the northern subpopulation of northern anchovy (NSNA)
in 2010.
Consistent with the approach used to set the NSNA reference points,
the 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
[[Page 25197]]
anchovy at MSY or EMSY.\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. NMFS did so
because 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 and although
similar in context is slightly different than a calculation of
FMSY.
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The fishing mortality rate estimate is from an analysis that the
NMFS Southwest Fisheries Science Center (SWFSC) completed in 2016 as
part of an effort examining minimum stock size thresholds for CPS. For
potentially deriving an EMSY, this analysis used the most
current time-series data available, 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. This methodology, as more fully
described in the proposed rule results in an OFL of 94,290 metric tons
(mt), an ABC of 23,573 mt, and an ACL of 23,573 mt, all of which are
being established through this action.
In determining whether to use the abundance estimates described
above, we considered scientific reviews presented to the Council at its
April 2018 meeting, which stated that ATM estimates cannot be
considered absolute estimates of biomass and should not be used to
directly inform management on their own. These reviews concluded that,
unless ATM estimates are used as a data source in an integrated stock
assessment model, two things would need to occur before they are used
to directly inform management, including: (1) Addressing the area
shoreward of the survey that is not sampled; and (2) conducting a
management strategy evaluation to determine the appropriate way to
incorporate an index of abundance into a harvest control rule. However,
we are comfortable at this time with using these ATM estimates, because
the acoustic estimates represent recent information on the stock and
can be considered minimum estimates of the stock size, and using these
estimates in a time series to set an OFL, in combination with reducing
the OFL by 75 percent to set the ABC and ACL, will prevent overfishing.
Therefore, NMFS determined that using these ATM estimates in the manner
described above represents use of the best available information for
determining the 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 that is
built into the harvest policy for CPS stocks, appropriately accounts
for the various types of scientific uncertainty around the OFL estimate
and also takes into account other considerations associated with
meeting the goals and objectives of the CPS FMP. This action sets the
ACL equal to the ABC per the framework in the FMP. The CPS FMP states
that the ACL for stocks in the monitored management category are set
equal to their ABC or lower if it is determined necessary to prevent
overfishing or for other OY considerations. When deciding whether to
reduce the ACL to prevent overfishing, the primary condition that would
necessitate NMFS setting an ACL at a level lower than ABC would be if
NMFS determined that landings could not be adequately tracked in-season
to prevent harvests from exceeding the ABC. However, setting the ACL at
a level lower than the ABC, or establishing an additional ACT to
account for management uncertainty and to prevent overfishing is
unnecessary, because managers have the ability to track the landings of
this fishery and close the fishery if necessary to ensure the ACL, and,
therefore, to ensure that the ABC is not exceeded.
As for setting the ACL at a level lower than ABC for OY
considerations, no probative information has been presented that
requires reductions in the ACL based on economic or social reasons.
Oceana asserted that prey dependency (a potential ``ecological
consideration'' that they note) dictates reductions, however, as
discussed in the responses to Comments 5 and 6 below, there is no
credible scientific record for that assertion. The ACL will
sufficiently limit harvests of central anchovy on an annual basis to
both conserve the ecosystem and prevent overfishing of the stock.
These reference points will remain in place until changed
conditions necessitate revisions to the FMP framework or changes to the
reference points pursuant to the existing framework. If the ACL is
reached, or about to be reached, the fishery will be closed until the
beginning of the next fishing season. The NMFS West Coast Regional
Administrator would publish a notice in the Federal Register announcing
the date of any such closure.
This action also implements a minor revision to 50 CFR 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.
On April 8, 2019, NMFS published a proposed rule for this action
and solicited public comments (84 FR 13858), with a public comment
period that ended on April 23, 2019. NMFS received 10 comment letters
on the proposed rule. Some of the letters included multiple comments,
and some letters contained comments similar to comments in other
letters. NOAA summarizes and provides responses to the comments below.
We note that some comments included recommendations to change the
default ABC control rule for monitored stocks, the OY specification for
central anchovy, and the central anchovy management framework, but none
of these measures were within the scope of this rulemaking. Even though
these recommendations were not within the scope of this final rule, for
information purposes only, NMFS also respondse to these recommendations
below. No changes were made from the proposed rule stage in response to
the comments received.
Comments and Responses
Comment 1: One of the comments provided by the environmental non-
governmental organization Oceana stated that the proposed action was
not consistent with the CPS FMP, specifically the framework for setting
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the OFL, ABC, and ACL for stocks in the monitored management category
of the FMP. The commenter notes that the prior MSY estimate for central
anchovy was based, to some degree, on a long time series of abundance
estimates, whereas the proposed MSY value and OFL are only based on 3
years of abundance estimates. The commenter questions NMFS's choice of
abundance estimates, as well as why NMFS did not use other available
abundance estimates. The commenter notes that by excluding other
abundance estimates or not considering them, NMFS does not ensure
management measures prevent overfishing if the stock declines below
NMFS's selected average biomass. Finally, the commenter states that, in
other recent abundance estimates, central anchovy abundance was below
the ACL proposed in this action.
Response: NMFS used the best scientific information available to
determine the OFL for central anchovy. As described in the preamble of
the proposed rule, under the default framework established through
Amendment 13 (76 FR 70362, November 14, 2011) the OFL had been set
equal to the existing MSY value in the FMP. This MSY value was set in
Amendment 8 to the FMP. Using this approach again would have resulted
in the OFL that was vacated in the court decision on Oceana v. Ross.
For this reason, the commenter is correct that NMFS did not use the
default method described in the FMP. Instead, NMFS derived reference
points using an alternative approach.
NMFS did not attempt with this rule to ``update'' or calculate a
new MSY value for central anchovy and it was not necessary to do so. As
stated in the preamble of the proposed rule, although a default method
is described in the FMP for setting reference points for stocks in the
monitored management category of the FMP, the OFL may also be
determined using a stock-specific method. For example, when determining
the OFL for the northern subpopulation of northern anchovy (NSNA), the
Council recommended a stock-specific approach to calculate an OFL
instead of the FMP default method. Section 4.6.1 of the CPS FMP states
that ``the Council may use the default harvest control rule . . . for
Monitored species unless a better species-specific rule is available.''
For this action NMFS determined that although a viable MSY estimate for
central anchovy still exists in the FMP, a stock-specific approach was
more appropriate for calculating the OFL.
Additionally, although NMFS did not explicitly recalculate a new
estimate of MSY for central anchovy, one of the central tenets of the
management framework for stocks in the monitored management category is
that, unlike stocks in the active management category whose OFL and ABC
change every year, the OFL and ABC for stocks in the monitored category
remain in place until new scientific information becomes available to
warrant changing them or they are moved to the active category.
Therefore, not only did NMFS determine that the OFL and ABC in this
action are based on the best scientific information available, NMFS
also determined that these values are robust enough to remain in place
for multiple years and still prevent overfishing.
Although the vacated reference points were set using long-term
information and thus were representative of the long-term population
structure and variability of central anchovy, the District Court
indicated that the vacated reference points were not reflective of
recent biomass levels. To address this concern, NMFS attempted to use
recent abundance estimates in the current rulemaking. In making this
decision, NMFS examined historical estimates from past central anchovy
stock assessments, specifically the time series of spawning stock
biomass produced by the 1995 assessment. That stock assessment was
subject to a formal scientific review and was determined to be the best
scientific information available estimating the biomass of central
anchovy for 1994. NMFS reviewed this information, to compare more
recent abundance estimates to historic biomass estimates. This
comparison revealed that the recent ATM and DEPM biomass estimates used
to calculate the OFL implemented in this action fell well within the
range of historic estimates. The average of the recent three abundance
estimates was similar to the average biomass over the historic
timeframe. The average spawning stock biomass from 1963 to 1994 using
values produced by the 1995 stock assessment was approximately 400,000
mt, with a median of 346,500 mt. Averaging abundance estimates from the
three recent years used in this fnal rule (151,558 mt, 308,173 mt,
723,826 mt) produces a very comparable average biomass of 394,519 mt.
The highest stock biomass estimate over the historic timeframe
according to the 1995 stock assessment was approximately 1.1 million
mt, and the lowest was 138,000 mt.
The commenter also states that NMFS did not consider other data
sources that provide longer term estimates of central anchovy abundance
and that show that the values chosen by NMFS are not valid.
Specifically the commenter cites estimates from two scientific papers,
a MacCall et al. 2016 (MacCall paper) and a Thayer et al. 2017 paper.
(Thayer et al. 2017 is also used by the commenter as a reference to a
Thayer 2018 citation that includes estimates only presented as a public
comment to the Pacific Fishery Management Council in 2018.) The
commenter also cites apparent total abundance estimates from egg and
larval data produced by NMFS, other than the DEPM estimate used for
this rulemaking. In previous reviews and for multiple reasons, NMFS and
other independent scientists determined that the estimates of abundance
from the MacCall paper were not the best scientific information
available on the status of total central anchovy population. NMFS and
other outside scientists had concerns regarding the method used to
expand the trend information into estimates of absolute or total
abundance. Also, NMFS and outside scientists identified inherent issues
with using data from only the California Cooperative Fisheries
Investigation (CalCOFI) core region for estimating total biomass, as
the spatial scale of this region does not encompass the range of
central anchovy, as well as the high uncertainty in the estimates the
paper produced. In 2016, NMFS fishery scientists and other outside
scientists highlighted technical flaws in the method the MacCall paper
used to derive population estimates in presentations to the Council. In
NMFS' judgement, these issues rendered the estimates unreliable as a
measure of the total stock abundance. NMFS presented an analysis at the
Council's November 2016 meeting (i.e., attempted ``DEPM-lite'') that
confirmed some of the technical weaknesses with the MacCall paper's
estimation method and that same method is used for the estimates in
Thayer et al. 2017 and Thayer 2018. The Council's Science and
Statistical Committee (SSC) agreed with NMFS's analysis of these
technical weaknesses with the methods used to derive the biomass
estimates in the MacCall and subsequent Thayer papers. NMFS analysis
presented to the Council in November 2016, as well as a separate
publication by NFMS scientists (McClatchie et al 2018), also
highlighted some of the practical reasons why the stock was likely
never as low as calculated or purported by the original MacCall paper
and subsequent Thayer papers. For this action, NMFS re-reviewed the
MacCall paper and reviewed the subsequent estimates utilizing this same
method (Thayer et al 2017 and Thayer 2018) and believes that
[[Page 25199]]
these estimates do not represent the best scientific information
available currently on the population status of central anchovy.
In fact, Thayer 2018, presented revised estimates from Thayer et
al. 2017 that were drastically higher than they had previously
reported, further raising issues with the accuracy and usability of the
MacCall and Thayer estimates for calculating an OFL. Specifically,
Thayer et al. 2017, reported population levels for the years 2012-2016,
extending the MacCall 2016 estimates beyond 2011 (the last year
included in that paper), and stated that central anchovy total
abundance in 2015 was 5,300 mt and that the 2016 population level was
probably similar to the 2015 estimate. However, Thayer 2018 revised the
Thayer et al. 2017 estimates for 2015 and 2016 to 92,100 mt and 153,200
mt respectively; these revised estimates are approximately 30 times
higher than the Thayer et al. 2017 estimates from the previous year.
This is not to say that all of the information produced by these
papers is uninformative. H, for use as total estimates of the central
anchovy population, or for determining a reliable OFL for the purpose
of this rule, NMFS determined that the MacCall and Thayer papers did
not represent the best scientific information available. The data used
by NMFS in this action come from validated and approved methods for
determining biomass and therefore represent better estimates of the
total biomass of central anchovy and therefore are the best scientific
information available for use in determining the OFL. NMFS notes,
however, that if one were to compare the MacCall and Thayer time series
of biomass estimates to the information that NMFS used to calculate the
OFL in this final rule, the range of the estimates (e.g. both the
average and the median) are actually fairly similar. And in one
scenario, using the time series of calculated biomass estimates from
the Thayer papers actually produces an average biomass value of 425,000
mt., which is higher than the average of the three years used by NMFS
of approximately 395,000 mt. Using this higher average biomass to
calculate an OFL would subsequently result in a higher OFL than the one
in this final rule.
The commenter also relies on a time series of data incorporating
the biomass estimates from MacCall and Thayer in stating that the
anchovy biomass was below the proposed ACL in recent years. As stated
above, NMFS has determined that these estimates of biomass do not
represent the best scientific information available regarding the
current or past status of the stock. As noted above other information,
also directly contradicts the commenter's assertion that the population
of anchovy was ever as low as stated in the MacCall paper (lower than
20,000 mt and potentially as low as 6,000 mt) including that actual
fishery landings exceeded these levels in the same years while at the
same time, large amounts of anchovy are also being consumed by
predators. For example, in 2015, just over 17,000 mt of central anchovy
were caught in U.S. waters alone, while Thayer et al. 2017 estimated
that the population was only 5,000 mt in 2015.
Similarly, the commenter questions NMFS's choice to not use a NMFS
ATM estimate of abundance from 2015 as well as apparent egg production
estimates and other egg and larval data from CalCOFI data. NFMS did
consider the degree to which NMFS could use the 2015 ATM estimate. NMFS
determined that this estimate could not be used because the 2015 ATM
estimate was calculated during the first year the SWFSC had attempted
an ATM estimate for central anchovy, because of the uncertainty
associated with the estimate, and because the estimate was never
finalized by the SWFSC, determined to be best available science, or
published by the SWFSC in a final technical report. As it relates to
existing or potential estimates from egg and larval data, the commenter
cites an index of abundance presented by NMFS scientists in 2016 for
the years 1981-2015, as well as information presented at the November
2018 Council meeting by NMFS SWFSC staff, that the commenter states
showed ``. . . data on 2017 egg production and corresponding spawning
stock biomass estimates for CSNA, indicating the agency is able to
convert the relative egg production index to absolute biomass.'' The
commenter further states that ``[t]his presentation also included time
series of CSNA spawning biomass from DEPM, DEPM Light, and CalCOFI eggs
& larvae for 1982, 1983, 1984, 2009-2011, and 2017, including a
spawning biomass of 15,000 mt from 2009-2011''. While it is true that
in 2016 NMFS attempted to produce egg production estimates in a manner
similar to the method used in the MacCall paper (although NMFS made
some modifications to try to correct some of the faults in the method
used in the MacCall paper), NMFS reached the same conclusion as it had
when reviewing the 2015 ATM estimate, that is, that the data was not
suitable for estimating the total biomass of the central anchovy stock.
This conclusion is also stated in the presentation the commenter
references. NMFS is somewhat unclear as to what information the
commenter is referencing when using the phrase ``indicating the agency
is able to convert the relative egg production index to absolute
biomass,'' except perhaps there is confusion regarding the various
methods used for the data presented. The presentation does include the
2017 DEPM estimate used by NMFS for this action, as well as some
historical DEPM point estimates for reference, as well as non-DEPM
methods, such as the MacCall estimates; however to clarify, although
the 2017 DEPM estimate used by NMFS as part of this rulemaking, the
estimates from the MacCall andThayer papers, the attempted DEPM-lite
and the egg production estimates referenced by the commenter all use
some level of egg data; however, all of these different biomass
estimates were produced using different methods. For example some of
these methods, including the MacCall and Thayer methods, require taking
trends in the egg data and expanding or turning those trends into an
estimate of absolute biomass. This type of expansion is one of the
technical flaws mentioned above that makes estimates from these methods
unreliable for estimating total biomass. Whereas, the 2017 DEPM
estimate does not suffer from this same weakness because it is a direct
calculation derived using reproductive information from adult fish
collected in the same year as the egg and larval information, which is
not the case for the MacCall and Thayer biomass estimats. By taking
data from adult fish from the same year in which the egg data are
collected, there is not a need to expand the egg data into estimates of
biomass based adult information from a different time period, such as
the 1980's as done in the MacCall paper. In addition, the 2017 DEPM
estimate used by NMFS in this final rule was derived using egg data
from more than just the core CalCOFI region. The survey data used for
this estimate was from north of San Francisco to San Diego, and
therefore it covered the majority of the range of central anchovy in
U.S. waters. By comparison, the northern extent of the CalCOFI data
used in for the MacCall and Thayer estimates is near Point Conception,
California.
Comment 2: The Council commented that, although it had limited time
to review the proposed rule, it considered the proposed OFL, ABC, and
ACL as viable replacements for these reference points for central
anchovy at this time. The Council also noted that the CPS
[[Page 25200]]
FMP allows reference points to be updated, if necessary, as new
scientific information becomes available. The Council's comment letter
described its future plans to investigate other approaches for setting
the central anchovy reference points in the future.
Response: NMFS recognizes that the Council had limited time to
review the proposed rule, and appreciates the Council scheduling time
at its April meeting to allow the Council and its advisory bodies to
review the proposed reference points. NMFS will continue to support
Council efforts to research central anchovy reference points and
management approaches.
Comment 3: A number of commenters expressed concern over the
perceived indefinite and/or static nature of the proposed reference
points. Commenters stated that setting reference points indefinitely
for central anchovy would not account for the variability of the stock
size from one year to the next, and may not prevent overfishing in
years when the population is small. Related to this comment was a
comment that the ABC control rule NMFS used to set reference points in
this action does not prevent overfishing because it does not account
for the variability in central anchovy population levels. Oceana also
commented that new information shows that the anchovy population is
highly variable.
Response: The management framework in the CPS FMP adjusts reference
points for some stocks each year based on annual estimates of total
biomass, typically from integrated stock assessments. For other stocks,
such as central anchovy, the FMP uses conservative catch limits that
are not adjusted annually. The CPS FMP management framework is
described in further detail in the preamble of this rule and in the
proposed rule, but is not the subject of this rulemaking. Therefore,
NMFS is not re-opening the CPS FMP management regime or the ABC control
rule used in this rule, which provides for a 75 percent reduction to
the OFL. This management regime and ABC control rule were recommended
by the Council's SSC and approved by NMFS in 2000 through Amendment and
reaffirmed through Amendment 13 in 2011.
Although the reference points implemented in this rule will not be
adjusted until the Council or NMFS takes a new action to change them,
they are not intended to be in place indefinitely. The CPS FMP
explicitly allows the Council to recommend changes, updates, or
revisions to reference points at any time based on new scientific
information. Additionally, these commenters appear to assert that
``overfishing'' of the stock will occur if, in a single year or a few
consecutive years, the biomass of the stock is 75 percent or more below
the average biomass used to calculate the OFL. This assertion however
assumes that the OFL is equal to the average biomass used in the OFL
calculation, when in fact the OFL is substantially lower than average
biomass. Conceptually, one can view the OFL as a proxy for MSY and by
definition, MSY is a long-term average yield, not biomass, and is
intended to represent he amount of fishing mortality that may
sustainably occur over the long term, even with variability in stock
biomass. The annual estimate of central anchovy stock biomass may be
higher or lower than average biomass in a given year, without
overfishing occurring. And because the ABC/ACL level has been
substantially reduced from the OFL/MSY level, which was reduced from
average biomass, the annual estimate of central anchovy biomass may
also be above or below this level without overfishing occurring.
Regarding the ABC control rule, i.e. the 75 percent buffer from OFL
to ABC, NMFS further notes that this buffer is intended to account for
scientific uncertainty in the estimate of stock biomass, and ensures
that overfishing does not occur if there are large changes in abundance
from one year to the next. The commenter imagined an example stock that
declines from 715,000 mt to 167,000 mt over a 3-year period (a 77
percent decline from 1985-1988), and stated that reducing a static OFL
by 75 percent is not sufficient to prevent overfishing. The commenter
noted that, had an overfishing limit and associated catch limits been
set based on the 1985 biomass of 715,000 mt, an ABC set using the 75
percent buffer would not have been sufficient to prevent overfishing.
If NMFS did in fact set the OFL based on an estimate of biomass of
715,000 mt, then the resulting OFL based on the same methodology in
this action would be 170,885 mt. In this case, the resulting ABC would
be 42,712 mt. If the biomass then declined to 167,000 mt, then a
removal of 42,712 mt would only be a 25 percent harvest rate, which
would still be precautionary for a fast growing and highly productive
species like central anchovy. Additionally, the methodology that NMFS
used in this rulemaking for determining the OFL does not set the OFL
equal to a single estimate of biomass.
NMFS agrees that there is considerable variability in the central
anchovy population, and notes that the original CPS FMP recognized this
variability. The analysis used to approve the originally CPS FMP, which
is when the Council first adopted the ABC control rule for stocks in
the monitored management category, highlights the variability of CPS
stock sizes in multiple places. For instance the CPS FMP states that
``extreme natural variability and susceptibility to recruitment
overfishing are characteristic of clupeoid stocks.'' Central anchovy is
a clupeoid stock. Additionally, the CPS FMP cites multiple scientific
studies showing that central anchovy goes through ``boom and bust''
cycles and has done so even back to historical time frames (over 1,000
years ago) before there was commercial fishing on the stock. NMFS notes
that the concept of potential risks of fishing at a constant level on
variable stocks like those in the CPS FMP, is not a new concept as
implied by the commenter, and was also recognized in the original CPS
FMP and therefore were considered and properly accounted for when
determining and adopting the monitored stock control rules. The CPS FMP
states, ``The original theoretical definition of MSY as a constant
level of catch should not be applied in the CPS fishery, because
biomass and productivity of most CPS change in response to
environmental variability on annual and decadal time scales. For
example, the theoretical, deterministic equilibrium MSY catch level for
Pacific sardine under favorable environmental conditions may be greater
than the biomass of an unfished stock under unfavorable environmental
conditions (Jacobson and MacCall 1995). Any reasonable level of MSY as
a constant catch will result in low biomass levels and risk to the
stock during unproductive periods when abundance tends to decline.''
This is why catch levels are not set at MSY under the CPS FMP, instead,
the Council and NMFS determined that applying the conservative
monitored stock control rule, which sets catch substantially below MSY
catch levels alleviate the concern that some of the resulting annual
catch levels could be detrimental to the stock.
Furthermore, the available data and information for this stock does
not indicate that fishing at similar levels seen over the last 20 years
jeopardizes the long-term productive capacity of the stock, even when
biomass levels are relatively low. NMFS acknowledges that the stock was
likely at relatively lower levels at times in the past decade, but even
assuming the stock reached the anomalously low levels calculated by the
MacCall and Thayer for 2009-2015, fishing continued at historical
levels
[[Page 25201]]
and the stock recovered very substantially in the immediately following
years according to all of the available biomass estimates. Nothing in
the recent experience for this stock suggests that ``overfishing'' is
occurring or likely with the ACL adopted by this final rule. To the
contrary, the scientific consensus long has been that fishing is not
having any significant impact on this stock, and the more recent
biomass data only confirm that conclusion.
Finally, as part of NMFS' general responsibilities, we will
continue to collect information on the abundance of central anchovy,
likely through the results of ATM surveys, and report that information
to the Council to ensure adequate conservation and management of the
stock. Separately, if NMFS were to observe any anomalously low
fluctuations in the population, we would directly inform the Council of
the changed conditions and determine if a change in the management of
the stock is warranted to conserve central anchovy.
Comment 4: NMFS received two comments, one from the whale watching
business and one from a wildlife photographer, expressing concern over
potential impacts to humpback whales from anchovy fishing in and around
Monterey Bay, California. In particular, commenters stated that fishing
may cause localized depletion of anchovy, which is a prey species for
humpback whales, and may ultimately impact businesses that involve
humpback whales, such as whale watching and other tourism.
Response: Although not specifically requested in the comments as a
way to mitigate potential localized depletion effects, we note that
area closures to mitigate potential localized depletion or user group
conflicts or other measures to restrict anchovy fishing in Monterey Bay
or other areas are outside the scope of this action. Humpback whales
are globally distributed and are highly migratory. The whales spend
spring, summer, and fall feeding in temperate or high-latitude areas of
the North Atlantic, North Pacific and Southern Ocean, and migrate to
the tropics in winter to breed and calve. Recent NMFS status reports
show humpback whales are increasing in abundance throughout much of
their range, with some populations that occur off of California to feed
no longer warranting listing as endangered under the Endangered Species
Act. Humpback whales off the central California coast are highly
migratory, breeding in Costa Rica and Mexico and traveling to central
California to forage. Humpback whales are believed to be largely
opportunistic foragers (Fleming et al., 2015), who target a wide
variety of prey species (Whitteveen, 2006). They are known to feed on
several types of small schooling fish and krill, and their prey
consumption is likely an indicator of dominant prey types in the
ecosystem. Each year, the distribution of these whales off the West
Coast can shift based on a variety of biological and environmental
conditions. These whales typically undertake regular migrations between
feeding and breeding areas. Environmental conditions will also vary and
influence the distribution of prey species (e.g., krill and small
fishes) the whales need. Given their diverse diet and migratory
patterns, it is unlikely that the removal of a portion of one prey
source in one localized geographic area would have a substantial
negative impact on their population. Additionally, although central
anchovy can often be found in Monterey Bay, there is not a separate
resident population of central anchovy within Monterey Bay. Along with
moving up and down the coast, anchovy also move in and out of Monterey
Bay and this movement happens regardless of fishing pressure. This
pattern may be linked the whether or not krill, one of their preferred
prey species, are available in more offshore waters. NMFS is actively
engaged in trying to understand the drivers of humpback whale foraging
patterns along the U.S. West Coast to enhance the ecosystem science
used in our fisheries management. These include, in particular the
patterns witnessed recently of humpback whales moving inshore because
of a lack of krill offshore.
Comment 5: Oceana also commented that NMFS should set the ACL below
ABC to account for predator needs and other relevant ecological,
economic, and social factors, to achieve optimum yield.
Response: Although the ACL can be set lower than the ABC (which has
already been reduced from OFL) for OY considerations, as it relates to
predator needs NMFS has determined that no further reductions are
warranted based on the record. With regard to the potential indirect
impact to central anchovy predators through the removal of a prey
source, because the ACL is set equal to the ABC, and the ABC has
already been substantially reduced to account for scientific
uncertainty to protect central anchovy from overfishing and OY
considerations, harvesting up to the ACL level should have a minimal
effect on central anchovy populations. As discussed above, the recent
biomass trends support this conclusion. Populations of anchovy
fluctuate frequently, primarily triggered by larger ecosystem and
environmental changes and regardless of fishery harvests, which
generally amount to a relatively small proportion of central anchovy
biomass even at lower biomass levels. Therefore, it is unlikely that
removing up to the ACL will reduce the total abundance of central
anchovy in a manner that would indirectly impact predator populations.
Additionally, given that harvest rates of central anchovy have
generally been well below this ACL, with little expectation they will
increase significantly in the short term, and the fact that central
anchovy is only one component of much larger forage base upon which
most predators in the California Current Ecosystem (CCE) along the U.S.
West Coast depend, harvest at the level of the ACL would likely not
have a discernable impact as a removal of a prey source. Furthermore,
there is no direct evidence that the current fishing levels are having
direct competition effects on species that feed on central anchovy. The
likely reason for this, as reflected in most studies on the subject, is
that predators of CPS in the CCE have opportunistic diets and do not
depend on one specific prey item. For example, many documented
predators of sardines showed no signs of population stress or decline
during periods of very low sardine abundance in the CCE from the 1950s
through the 1980s when their diets reflected an absence of this prey
resource.
NMFS did not identify any other economic, ecological or social
reasons to reduce the ACL from the ABC.
Classification
NMFS is issuing these regulations under Magnuson-Stevens Act
section 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 final rule is not significant.
A final regulatory flexibility analysis (FRFA) was prepared as part
of the regulatory impact review. The FRFA describes the economic impact
this final rule may 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,
[[Page 25202]]
whose primary industry is commercial fishing (see 50 CFR 200.2(a)). 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 final rule is the
establishment of a new OFL, ABC, and ACL for the central anchovy.
The small entities that would be affected by this 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 final 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 final 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 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.
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 action should not result in
changes in current fishery operations. As a result, it is unlikely that
the ACL implemented 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 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 OY
considerations not already build into the ABC control rule. This 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, this 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 final rule exist that
would accomplish the stated objectives of the applicable statutes while
minimizing any significant economic impact of this rule on the affected
small entities. However, as stated above, this final 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: May 28, 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 amended
as follows:
PART 660--FISHERIES OFF WEST COAST STATES
0
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 for this subpart. When the directed fishery
allocation, incidental allocation, annual catch limit is reached for
any 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.
* * * * *
0
3. In Sec. 660.511, paragraph (k) is added 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. 2019-11400 Filed 5-30-19; 8:45 am]
BILLING CODE 3510-22-P