[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