[Federal Register Volume 85, Number 223 (Wednesday, November 18, 2020)]
[Proposed Rules]
[Pages 73446-73454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25334]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 20112-0302]
RIN 0648-BK13


Fisheries Off West Coast States; Coastal Pelagic Species 
Fisheries; Harvest Specifications for the Central Subpopulation of 
Northern Anchovy

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule to revise the annual reference 
points, including the overfishing limit (OFL), acceptable biological 
catch (ABC) and annual catch limit (ACL), for the central subpopulation 
of northern anchovy in the U.S. exclusive economic zone off the west 
coast under the Coastal Pelagic Species Fishery Management Plan. NMFS 
prepared this rulemaking in response to a September 2020 court decision 
(Oceana, Inc. v. Ross et al.) that vacated the OFL, ABC, and ACL for 
the central subpopulation of northern anchovy and ordered NMFS to 
promulgate a new rule in compliance with the Magnuson-Stevens Fishery 
Conservation and Management Act and Administrative Procedure Act. NMFS 
is proposing an OFL of 119,153 metric tons (mt), an ABC of 29,788 mt, 
and an ACL of 25,000 mt. If the ACL for this stock is reached or 
projected to be reached, then fishing will be closed until it reopens 
at the start of the next fishing season. This rule is intended to 
conserve and manage the central subpopulation of northern anchovy off 
the U.S. West Coast.

DATES: Comments must be received by December 3, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2020-0136 by the following method:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-

[[Page 73447]]

0136, click the ``Comment Now!'' icon, complete the required fields, 
and enter or attach your comments.
    Instructions: Comments must be submitted by the above method to 
ensure that the comments are received, documented, and considered by 
NMFS. Comments sent by any other method or received after the end of 
the comment period, may not be considered. All comments received are a 
part of the public record and will generally be posted for public 
viewing on www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, West Coast Region, 
NMFS, (562) 980-4034.

SUPPLEMENTARY INFORMATION: The coastal pelagic species (CPS) fishery in 
the U.S. exclusive economic zone (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. As required by the Magnuson-Stevens Act, the CPS FMP and its 
implementing regulations are consistent with the Act's 10 National 
Standards. Among other things, the National Standards require that 
conservation and management measures ``prevent overfishing while 
achieving, on a continuing basis, the optimum yield (OY) from each 
fishery'' (National Standard 1) and ``be based upon the best scientific 
information available'' (National Standard 2).\1\
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    \1\ 16 U.S.C. 1851(a)(1) and (2); see also, 50 CFR 600.310 and 
50 CFR 600.315.
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Background on CPS Management for Monitored Stocks

    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 that are set periodically or 
annually based on regular 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 procedure. In contrast, stocks in the monitored 
category (jack mackerel, northern anchovy, and market squid \2\) are 
managed under multi-year catch limits and annual quantitative or 
qualitative reviews of available abundance data without regular stock 
assessments or required annual adjustments to target harvest levels. 
This is in part due to the fact that fisheries for monitored stocks do 
not have biologically significant catch levels and, therefore, do not 
require intensive harvest management to ensure overfishing is 
prevented. Allowable catches for stocks in the monitored stock category 
are set well below maximum sustainable yield (MSY) levels to ensure 
overfishing does not occur. As a result, monitored stocks have been 
adequately managed by tracking landings and examining available 
abundance indices. In contrast, the ACLs for stocks in the active 
category are set much closer to their respective OFL/MSY levels due to 
the higher certainty in their OFLs. 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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    \2\ Market squid is statutorily exempt from the general 
requirement to be managed using an ACL because of its short life-
cycle.
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    In September 2011, NMFS approved Amendment 13 to the CPS FMP, which 
modified the framework process used to set and adjust fishery 
specifications and for setting ACLs and accountability measures (AMs). 
Amendment 13 conformed the CPS FMP with the 2007 amendments to the 
Magnuson-Stevens Act and the Magnuson-Stevens Act National Standard 1 
guidelines at 50 CFR 600.310, which for the first time required ACLs be 
established for management unit species (with exceptions). 
Specifically, Amendment 13 maintained the existing reference points and 
the primary harvest control rules for the monitored stocks (jack 
mackerel, northern anchovy, and market squid), including the large 
uncertainty buffer built into the ABC control rule for the finfish 
stocks. Amendment 13 established a management framework under which the 
OFL for each monitored stock is set equal to its existing MSY value, if 
available, and ABC values are set at 25 percent of the OFL to provide a 
75 percent scientific uncertainty buffer. It was recognized at the time 
that these OFLs would be uncertain, therefore the Council's Scientific 
and Statistical Committee (SSC) recommended that a large uncertainty 
buffer be used (i.e., 75 percent reduction) to prevent overfishing. 
ACLs are then set either equal to or lower than the ABC; annual catch 
targets (ACTs), if deemed necessary, can be set less than or equal to 
the ACL, primarily to account for potential management uncertainty.
    Compared to the management framework for stocks in the active 
category, which uses annual estimates of biomass to calculate annual 
harvest levels, the ACLs for the monitored finfish stocks are not based 
on annual estimates of biomass or any single estimate of biomass. As 
described previously, 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 available) 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. 
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.
    Although the allowable catch levels are not required to be adjusted 
each year for stocks in the monitored category, the Council's Coastal 
Pelagic Species Management Team is required by regulation to provide 
the Council an annual Stock Assessment and Fishery Evaluation report, 
which documents significant trends or changes in the resource, marine 
ecosystems, and fishery over time, and assesses the relative success of 
existing State and Federal fishery management programs.\3\ The report 
documents trends in landings, changes in fishery dynamics

[[Page 73448]]

and available population, and biological information for all CPS stocks 
and is available for Council review each November. The purpose of this 
report is to provide the Council the ability to react to the best 
scientific information available and propose new catch limits if and 
when changes to management are needed to prevent overfishing or achieve 
the OY. A similar process is used for other stocks managed throughout 
the U.S. for which catch limits are not adjusted annually.
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    \3\ See 50 CFR 600.315(d).
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Purpose of the Proposed Rule

    On September 2, 2020, in Oceana v. Ross, et al. (hereafter referred 
to as ``Oceana II''), the U.S. District Court for the Northern District 
of California vacated and remanded to NMFS the May 31, 2019 final rule 
\4\ (hereafter referred to as the ``2019 Rule'') setting the OFL, ABC, 
and ACL for the central subpopulation of northern anchovy (hereafter 
referred to as ``central anchovy''). The Court ordered NMFS to 
promulgate a new rule in compliance with the Magnuson-Stevens Act and 
Administrative Procedure Act (APA) within 120 days of the Court's 
order. NMFS had issued the 2019 Rule pursuant to a 2018 decision from 
the same Court in Oceana v. Ross (hereafter referred to as ``Oceana 
I''), in which the Court had vacated the ACL established in a 2016 
final rule. The purpose of this current proposed rule is to set an OFL, 
ABC, and ACL in compliance with the control rules for monitored stocks 
in the CPS FMP, which would protect the stock from overfishing and 
accommodate the needs of fishing communities.
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    \4\ 84 FR 25196; May31, 2019.
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The 2016 Rule and Oceana I

    On October 26, 2016, NMFS published a final rule \5\ (hereafter 
referred to as the ``2016 Rule'') that established ACLs and, where 
necessary, other reference points (i.e., OFL and ABC) for stocks in the 
monitored category of the CPS FMP. The 2016 Rule included an ACL of 
25,000 mt for central anchovy.\6\ As described earlier in Background on 
CPS Management for Monitored Stocks ACLs for the monitored finfish 
stocks are not based on annual estimates of biomass or any single 
estimate of biomass. Accordingly, the OFL for central anchovy 
established in Amendment 13 to the CPS FMP was set equal to the long-
term MSY estimate previously established in Amendment 8 to the CPS FMP. 
This long-term MSY estimate was calculated based on biomass estimates 
from 1964-1990 (Conrad 1991 \7\). In accordance with the ABC control 
rule for monitored stocks, the ABC was then reduced to 25,000 mt by a 
precautionary 75 percent buffer to account for scientific uncertainty 
in the OFL, which is primarily tied to the population volatility of 
small pelagic fishes. This buffer and resulting ABC were recommended by 
the Council's SSC and approved by the Council.\8\ The ACL was set equal 
to the ABC at 25,000 mt because there was no additional management 
uncertainty to justify setting the ACL lower than the ABC.
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    \5\ 81 FR 74309.
    \6\ The 2016 Rule only implemented an ACL for central anchovy. 
The OFL and ABC for central anchovy were implemented via Amendment 
13 to the CPS FMP in 2011 based on values established in Amendment 8 
to the CPS FMP in 2000. However, since the 2016 ACL was calculated 
based on the previously implemented OFL and ABC, the Court vacated 
all three reference points.
    \7\ Conrad, J.M. 1991. A Bioeconomic Model of the Northern 
Anchovy. Administrative Report LJ-91-26. La Jolla, CA: NMFS 
Southwest Fisheries Science Center.
    \8\ See 16 U.S.C. 1852(g).
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    Oceana subsequently challenged the 2016 Rule in Court, in part, 
because a recent publication at the time, MacCall et al. 2016 \9\ 
(hereafter referred to as the ``MacCall publication''), purported that 
recent biomass levels (2009-2011) had been below the ACL implemented in 
the 2016 Rule and remained low in 2015. In approving the ACL for the 
2016 Rule, NMFS considered this information, but ultimately rejected 
the low biomass estimates in the MacCall publication despite their 
being the only estimates for the more recent time period, because NMFS 
determined that the biomass estimates were not reliable estimates for 
the entire central anchovy stock. The primary rationale for NMFS making 
this determination was that multiple public reviews by NMFS and other 
outside scientists, including the Council's SSC, had determined that 
the statistical method used in the MacCall publication to calculate 
adult anchovy biomass from counts of anchovy eggs and larvae was not 
appropriate. Also, NMFS and outside scientists identified inherent 
issues with using data from only the California Cooperative Fisheries 
Investigation (CalCOFI) core region for estimating total anchovy 
biomass, as the spatial scale of this region does not encompass the 
entire range of central anchovy, as well as the high uncertainty the 
publication itself reported for its estimates. Additionally, at the 
time of the 2016 Rule, the actual anchovy catch by the fishery in 
certain years had exceeded the publication's biomass estimate for those 
years, reinforcing NMFS' determination that the estimates were not 
reliable.
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    \9\ MacCall, A.D., W.J. Sydeman, P.C. Davison, and J.A. Thayer. 
2016. Recent collapse of northern anchovy biomass off California. 
Fisheries Research 175: 87-94.
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    The Court found, however, that the 2016 Rule for central anchovy, 
including the ACL it established, violated the Magnuson-Stevens Act and 
the APA. The Court also found that the values for the OFL and ABC on 
which the ACL was based were arbitrary and capricious because, in the 
Court's determination, they were outdated. In particular, the Court 
found that, ``the OFL, ABC, and ACL are arbitrary and capricious 
because Plaintiff has presented substantial evidence that the OFL, ABC, 
and ACL are not based on the best scientific information available.'' 
The Court also found that, ``it was arbitrary and capricious for the 
Service to fail to consider whether the OFL, ABC, and ACL still 
prevented overfishing in light of their direct reliance on a [maximum 
sustainable yield] estimate from a 1991 study that evidence in the 
administrative record indicated was out of date.'' On January 18, 2018, 
the Court granted Oceana's motion for summary judgment. On January 18, 
2019, the Court granted Oceana's motion to enforce the judgment and 
ordered NMFS to promulgate a new rule in compliance with the Magnuson-
Stevens Act and the APA by April 18, 2019.

The 2019 Rule and Oceana II

    As a result of the Court's decision in Oceana I, which vacated the 
2016 Rule, NMFS was charged with determining and implementing a new 
OFL, ABC and ACL unilaterally (i.e., outside of the Council process). 
In determining these new reference points, NMFS considered the District 
Court's opinion, which indicated that the vacated reference points were 
not reflective of recent biomass levels. This conclusion was despite 
the fact that the vacated 2016 reference points were set using long-
term information and thus were representative of the long-term 
population structure and variability of central anchovy. To address the 
Court's concern, NMFS examined ways to use recent abundance estimates 
in the 2019 Rule. However, NMFS also determined that a new OFL and ABC 
that significantly deviated from the management approach set in the CPS 
FMP for stocks in the monitored category would not be in accordance 
with the CPS FMP. After reviewing various methods and data, NMFS 
determined that with the limited time available to analyze more complex 
approaches for setting new reference points, the most appropriate path 
for setting an OFL for central anchovy in accordance with the CPS FMP 
was to

[[Page 73449]]

use an approach similar to the one used by the Council and approved by 
NMFS for developing an OFL and ABC for the northern subpopulation of 
northern anchovy (NSNA) in 2010. This method had been previously 
approved by the Council's SSC and NMFS and would allow the use of 
recent biomass estimates.
    Consistent with the approach used to set NSNA reference points, the 
OFL, ABC, and ACL set in the 2019 Rule were based on averaging three of 
the four estimates of relative abundance for central anchovy available 
from recent NMFS surveys and a recent estimate of the rate of fishing 
mortality for central anchovy at MSY or EMSY.\10\ The three 
abundance estimates NMFS used were from NMFS' 2016 and 2018 acoustic-
trawl method (ATM) surveys, which were 151,558 mt and 723,826 mt 
respectively, and NMFS' 2017 daily egg production method (DEPM) survey, 
which was 308,173 mt. NMFS excluded from further consideration a fourth 
available abundance estimate, an ATM estimate for 2017, because the ATM 
survey in the summer of 2017 was focused on 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 principal objectives of that survey were to gather 
data on the northern stock of Pacific sardine and, to some extent, the 
NSNA, and therefore the survey chose not to sample south of Morro Bay, 
California, which is an area where central anchovy are typically found.
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    \10\ 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 was from an analysis that the 
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 \11\). This analysis produced 
estimates of FMSY based on eight alternative models. NMFS 
used the average of the four best fitting models from that work to 
calculate an EMSY of 0.239. This methodology resulted in an 
OFL of 94,290 mt, an ABC of 23,573 mt, and an ACL of 23,573 mt.
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    \11\ Jacobson L.D., N.C.H. Lo, and S.F. Herrick Jr. 1995. 
Spawning Biomass of the Northern Anchovy in 1995 and Status of the 
Coastal Pelagic Fishery During 1994. Administrative Report LJ-95-11. 
La Jolla, CA: NMFS Southwest Fisheries Science Center.
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    In determining whether to use the previously described abundance 
estimates to develop the reference points for the 2019 Rule, NMFS 
considered scientific reviews presented to the Council at its April 
2018 meeting \12\, which stated that ATM estimates cannot be considered 
absolute estimates of biomass and should not be used to directly inform 
management on their own. Specifically, 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 could be 
used to directly inform management: (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, NMFS was 
comfortable at that time with using the ATM estimates from 2016 and 
2018, because they represent recent information on the stock and can be 
considered minimum estimates of the total 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, would prevent 
overfishing. Therefore, NMFS determined that using these ATM estimates 
in the manner described earlier represented use of the best scientific 
information available for determining the reference points in the 2019 
Rule.
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    \12\ See Methodology Review Panel Report: Acoustic Trawl 
Methodology Review for use in Coastal Pelagic Species Stock 
Assessments. This report is available on the Pacific Fishery 
Management Council website at: https://www.pcouncil.org/documents/2018/04/agenda-item-c-3-attachment-2.pdf/.
    See Center for Independent Experts Independent Peer Review of 
the Acoustic Trawl Methodology (ATM). This report is available on 
the Pacific Fishery Management Council website at: https://www.pcouncil.org/documents/2018/04/agenda-item-c-3-supplemental-attachment-3.pdf/.
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    In determining whether the new reference points were based on the 
best scientific information available and that the best scientific 
information available supported that they would prevent overfishing, 
NMFS again considered the data in the MacCall publication, as well as 
other existing data sources, including a publication by Thayer et al. 
2017 \13\ (hereafter referred to as the ``Thayer publication''), 
historical estimates of biomass from the last stock assessment NMFS 
completed for central anchovy in 1995, and more recent estimates of 
relative abundance from NMFS' ATM and DEPM surveys. Additionally, by 
this time NMFS also had a better understanding of the anomalous 
oceanographic conditions that had occurred between 2013-2016 that had 
caused major shifts in fish distributions during that time.\14\
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    \13\ Thayer, J.A., A.D. MacCall, and W.J. Sydeman. 2017. 
California anchovy population remains low, 2012-2015. CalCOFI Report 
Vol. 58.
    \14\ See New Marine Heatwave Emerges off West Coast, Resembles 
``the Blob'' Available at: https://www.fisheries.noaa.gov/feature-story/new-marine-heatwave-emerges-west-coast-resembles-blob.
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    After NMFS' second review and consideration of the MacCall 
publication and its results, NMFS found that it was not the best 
scientific information available on historical and recent abundance, 
nor on annual changes in abundance over time. NMFS maintained that the 
flaws identified in the 2016 review rendered the biomass estimates as 
unreliable and too uncertain. NMFS also found the Thayer publication 
was not the best scientific information available for determining 
appropriate 2019 reference points because the Thayer publication used 
the same methodology as the MacCall publication to calculate biomass 
estimates, and so suffered from the same deficiencies. NMFS concluded 
that its own, more recent estimates of abundance, which contained high 
and low abundance estimates, constituted the best scientific 
information available for setting 2019 reference points and preventing 
overfishing. Oceana once again challenged the OFL, ABC, and ACL 
established in the 2019 Rule. The Court ultimately vacated the 2019 
Rule, finding that: (1) NMFS failed to discredit the evidence put forth 
by Oceana (i.e., the MacCall and Thayer publications); (2) the OFL, 
ABC, and ACL were not based on the best scientific information 
available and therefore violated National Standard 2; and (3) the 2019 
Rule violated National Standard 1's requirement to prevent overfishing. 
The Court also concluded that the MacCall and Thayer publications 
constitute the best scientific information available regarding recent 
anchovy abundance estimates and anchovy population fluctuations and 
that the OFL, ABC, and ACL set in the 2019 Rule were therefore 
arbitrary and capricious because they did not account for this best 
scientific information available. The Court further concluded that 
NMFS' dismissal of McCall and Thayer was arbitrary and capricious 
because it is ``so implausible that it could not be ascribed to a 
difference in view or the product of the agency's expertise.'' The 
Court pointed specifically to one of the reasons NMFS

[[Page 73450]]

had cited for dismissing McCall and Thayer; namely, that Thayer is 
unreliable because it updated MacCall's estimate for 2015 but failed to 
correct its estimates for 2009-2014. Finally, the Court concluded that, 
``the fact that NMFS calculated unchanging OFL, ABC, and ACL values for 
an indefinite period of time based on data from 2016 to 2018 (years in 
which the anchovy population was drastically increasing) demonstrates 
that NMFS did not consider the best scientific information available 
from MacCall and Thayer.''

Proposed Reference Points for the 2020 Fishing Year

    As noted previously, the Court ordered NMFS to promulgate a new 
rule within 120 days of its September 2, 2020, order. NMFS therefore 
determined that, with such 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 the same method as in the 2019 Rule, 
however updated with the most recent information on the current status 
of central anchovy, the SWFSC's 2019 ATM estimate (810,634 mt). In 
making this decision, NMFS considered the Court's two primary findings: 
That the McCall and Thayer publications constituted the best scientific 
information available and that NMFS's 2019 ACL would not prevent 
overfishing in all years, based on the evidence presented to the Court 
at that time. NMFS responds to these findings in detail in the next 
section of this preamble.
    The 2019 method for calculating reference points results in a 
proposed OFL of 119,153 mt, an ABC of 29,788 mt, and an ACL of 25,000 
mt. However, NMFS had not anticipated the need to quickly develop new 
reference points, so to ensure that the reference points implemented 
through this action are based on the best scientific information 
available, NMFS is still reviewing whether other recent ATM or DEPM 
estimates from the SWFSC may be available to include in the calculation 
of the OFL. For example, NMFS is reviewing whether ATM estimates from 
2015 and 2017 can be determined to be the best scientific information 
available and incorporated into the calculation. Therefore, NMFS is 
notifying the public with the publication of this proposed rule that 
the values in the beginning of this paragraph are subject to change, 
but based on current understanding, are likely to stay in a similar 
range. NMFS will not, however, set an ACL higher than 25,000 mt 
regardless of the ABC calculation. Although there is no management 
uncertainty that requires reducing the ACL from the ABC, prior 
environmental analyses have only analyzed an ACL up to 25,000 mt, which 
is also the Council's previous determination of OY for the stock. If 
NMFS does not limit the time period for which this rule is effective (a 
possibility that is discussed later in this preamble), 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, the fishery 
will be closed until the beginning of the next fishing season. The NMFS 
West Coast Regional Administrator will publish a notice in the Federal 
Register announcing the date of any such closure.

NMFS' 2020 Review of the MacCall and Thayer Publications

    Although reference points proposed in this rule are similar to 
those previously vacated, NMFS has determined that they are based on 
the best scientific information available and that the best scientific 
information available shows that they will prevent overfishing, in 
compliance with National Standard 1. In making this determination, NMFS 
carefully reviewed and considered estimates of abundance from the 
MacCall and Thayer publications. The purpose of this review was to 
determine whether those estimates could or should be considered the 
best scientific information available regarding recent anchovy 
abundance estimates and anchovy population fluctuations. NMFS also 
looked at other historical and recent anchovy biomass estimates that 
had been previously determined to be the best scientific information 
available on anchovy biomass for years that the MacCall and Thayer 
publications also calculated estimates.
    As stated earlier, for multiple reasons, previous reviews by NMFS 
and other independent scientists determined that the abundance 
estimates from the MacCall publication do not represent the best 
scientific information available for annual estimates of total central 
anchovy population. Specifically, NMFS and other outside scientists had 
valid concerns regarding the method used to try to estimate the total 
abundance of all adult (or spawning adult) anchovy in any one year from 
counts of anchovy eggs and larvae from only a portion of the California 
coast where anchovy are found and without using biological information 
collected from adult anchovy that same year. These conclusions are 
documented in a report from a May 2016 workshop \15\ that included CPS 
experts from around the world, as well as in an October 2016 report 
\16\ from NMFS scientists. Both of these reports were also subsequently 
endorsed by the Council's independent scientific review body (i.e., the 
SSC).
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    \15\ See Report of the NOAA Southwest Fisheries Science Center & 
Pacific Fishery Management Council Workshop on CPS Assessments (May 
2-5, 2016). This report is available on the Pacific Fisheries 
Management Council website, at https://www.pcouncil.org/documents/2016/09/e2a_workshop_rpt_sept2016bb.pdf/.
    \16\ See Egg and Larval Production of the Central Subpopulation 
of Northern Anchovy in the Southern California Bight (October 24, 
2016). This report is available on the Pacific Fisheries Management 
Council website at https://www.pcouncil.org/documents/2016/11/agenda-item-g-4-a-swfsc-report.pdf/.
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    In light of the Court's finding in Oceana II that, based on the 
record at the time, the MacCall and Thayer publications constituted the 
best scientific information available regarding recent anchovy 
abundance estimates and anchovy population fluctuations, NMFS re-
examined the conclusions of the previously discussed 2016 scientific 
reviews of those publications. Specifically, NMFS reviewed the results 
of the May 2016 workshop, which was focused on anchovy and the data 
available to assess the status of the population. This workshop 
included experts from around the world on coastal pelagic species and 
was held as a direct result of the MacCall publication, as well as 
other evidence at the time that anchovy abundance was likely low (e.g., 
Leising et al. 2015 \17\). The focus of the workshop was to review the 
available information on the abundance of anchovy and provide 
recommendations for conducting stock assessments or other ways of 
estimating total anchovy abundance that could be used for management, 
as well as to potentially provide input to the Council on the status of 
anchovy for their upcoming November 2016 meeting. One of the 
conclusions of this workshop was that although information on the total 
abundance of anchovy did not currently exist, and the best way to 
assess the population would be through a full stock assessment that 
integrates multiple data sources, there was nevertheless value in 
attempting to turn trends from eggs and larvae information from the 
CalCOFI survey into estimates of total anchovy abundance. This 
approach, called DEPM-lite, was viewed as an extension of the approach 
used by the MacCall publication, but with an

[[Page 73451]]

attempt to correct for various issues identified in the calculations 
contained in the MacCall publication. Between May 2016 and October 
2016, NMFS scientists attempted to correct for some of the technical 
issues originally expressed at the May 2016 workshop. Ultimately, 
however, NMFS scientists determined that the technical weaknesses could 
not be overcome and that it would be inappropriate to expand the egg 
and larval data from CalCOFI into adult biomass in the manner done in 
the MacCall publication. NMFS presented this analysis to the Council at 
its November 2016 meeting\16\, and the Council's SSC agreed with NMFS' 
analysis of the technical weaknesses.\18\ Specifically, the SSC stated:
---------------------------------------------------------------------------

    \17\ Leisling, A.W. et al. State of the California Current 2013-
14: El Nino Looming. CalCOFI Report Vol. 55.
    \18\ See Scientific and Statistical Committee Report on Northern 
Anchovy Stock Assessment and Management Measures. This document is 
available on the Pacific Fishery Management Council website at: 
https://www.pcouncil.org/documents/2016/11/agenda-item-g-4-a-supplemental-ssc-report.pdf./

    The egg and larval production indices presented in the SWFSC 
report represent the best available science for trends in spawning 
biomass in the CalCOFI survey area. However, the report did not 
expand the trend information to estimate absolute spawning biomass 
in that area. The SSC agrees that this expansion is not appropriate, 
because it would require scaling the egg and larval indices using 
the Daily Egg Production Methods estimates for the 1980s. Neither 
the winter nor spring survey is conducted at the right time to fully 
capture spawning of CSNA, and the degree of mismatch may vary 
through time due to changing oceanographic conditions. A proper 
expansion from eggs and larvae to spawning biomass would require 
data on sex ratio, mean female weight, and fecundity. Variability in 
the timing of spawning may also complicate interpretation of the egg 
and larval time series as an index of relative abundance. The 
spatial extent of the CalCOFI survey is limited (by depth and 
latitude) relative to the distribution of the broader CSNA 
population. The proportion of the population contained in the survey 
area at any given time is unknown and changes through time due, in 
large part, to oceanographic conditions. As trends in the CalCOFI 
survey area may not be representative of the broader population, it 
---------------------------------------------------------------------------
is difficult to infer population-level trends.

    After this review, NMFS remains confident that those scientific 
reviews from 2016 were thorough and unbiased and finds no reason to 
disagree with their logic or conclusions.
    Although the previously-discussed technical rationale is sound in 
concluding that neither the MacCall publication nor the Thayer 
publication using the same methods is the best scientific information 
available, NMFS acknowledges that those publications contain the only 
explicit biomass estimates from 2009-2014. NMFS also acknowledges that 
those publications show that the stock during that time decreased to a 
very low level and that the ``drastic anchovy population fluctuations'' 
contained in the publications ``are only (emphasis added) documented by 
MacCall (2016) and Thayer et al. (2017).'' NMFS notes that it has never 
disputed whether the anchovy population was relatively low during the 
2009-2014 time period, at least in the core CalCOFI region; rather, 
NMFS disputes whether the population was as low as the flawed MacCall 
and Thayer estimates suggest and whether the adult population was as 
high as reported in the year preceding the purported decline. The 
methodological concerns with the MacCall and Thayer publications, 
combined with the additional uncertainty added by instances of combined 
fishery catches and predator consumption estimates (Warzybok et al. 
2018 \19\) well exceeding MacCall and Thayer estimates for some years, 
have led NMFS to consistently conclude that the year-specific estimates 
in the MacCall and Thayer publications are not appropriate to use as 
independent measures for determining reference points for central 
anchovy and whether those reference points will prevent overfishing.
---------------------------------------------------------------------------

    \19\ Warzybok P., J.A. Santora, D.G. Ainley, R.W. Bradley, J.C. 
Field, P.J. Capitolo, R.D. Carle et al. 2018. Prey switching and 
consumption by seabirds in the central California Current upwelling 
ecosystem: Implications for forage fish management. Journal of 
Marine Systems 185: 25-39.
---------------------------------------------------------------------------

    The authors of the MacCall and Thayer publications themselves 
cautioned against using their annual estimates as independent measures, 
stating, ``. . . . therefore estimates for recent single years are 
imprecise and should not be used individually for interpretation.'' 
Because of this, the Thayer publication suggests looking at the average 
of the last 4 years (2012-2015) provided in that publication, which is 
24,300 mt, as evidence of the extremely low level of the stock. In 
2018, however, as a result of newer data, the authors of the Thayer 
publication revised their estimated biomass for 2015,\20\ which 
increased the 4-year average for 2012-2015 to approximately 46,000 mt. 
While 46,000 mt may still be considered relatively low, that low 
average is driven mainly by the anomalously low 2012 and 2013 estimates 
of 9,400 mt and 7,500 mt, respectively. It is also worth noting that 
2013 is the year in which fishery catches of central anchovy exceeded 
the Thayer publication estimate of 7,500 mt--in other words, fishermen 
actually caught more anchovy than Thayer had estimated even existed. 
The estimates for the other years in Thayer's 4-year average were the 
2014 estimate of 75,300 mt and the revised 2015 estimate of 92,100 mt. 
NMFS originally raised the point of the revised 2015 estimate to the 
Court because it changed the narrative of how low the stock may have 
been, and for how long, and the importance of having accurate 
estimates, not, as the Court suggested, because it made other estimates 
unreliable.
---------------------------------------------------------------------------

    \20\ See Updated Biomass Estimates of CSNA. This document is 
available on the Pacific Fishery Management Council website at: 
https://pfmc.psmfc.org/CommentReview/DownloadFile?p=e982e162-4ec2-4b3b-8f1a-1da42a0bb81e.pdf&fileName=FI%20Letter%20to%20PFMC%20for%20Nov%202018%2C%20CSNA%20biomass%20update.pdf.
---------------------------------------------------------------------------

    During the preparation of this proposed rule, NMFS again examined 
the MacCall and Thayer publications to ensure their complete 
consideration in making a determination on appropriate new reference 
points for central anchovy and whether they would prevent overfishing. 
Specifically, NMFS freshly reviewed the publications' annual estimates 
to determine whether, notwithstanding the high degree of uncertainty 
NMFS has previously determined those estimates contain, they should be 
relied on as evidence of both: (1) Anchovy abundance for the 
extraordinarily low years for which NMFS does not have comparable 
competing estimates; and (2) anchovy population fluctuations for the 
recent large annual changes in biomass.
    As part of this review, NMFS compared overlapping estimates of 
biomass from the 1961-1994 time series of spawning stock biomass 
produced in NMFS' 1995 central anchovy stock assessment and recent NMFS 
ATM and DEPM estimates with estimates in the 1951-2017 Thayer 
publication's time series. The referenced NMFS stock assessment had 
been subject to a formal scientific review and determined to be the 
best scientific information available on the biomass of central 
anchovy. Although NMFS does not have alternative or competing estimates 
for 2009-2014, the years in which the Thayer publication estimated 
historically low anchovy abundance, NMFS does have competing estimates 
for 24 other years between 1961 and 2017. For these overlapping years, 
NMFS can find no reason that the estimates from the MacCall or Thayer 
publications should be considered the best scientific information 
available over existing NMFS estimates. In comparing the estimates for 
the historical time period (pre-1994), NMFS found that the average per-
year

[[Page 73452]]

difference in biomass estimates between Thayer and NMFS' estimates is 
over 550,000 mt, with the largest difference in any given year being 
nearly 1.8 million mt. The significant differences in these comparable 
estimates raises additional valid concerns about the reliability of the 
estimates found in the MacCall and Thayer publications, and further 
supports NMFS' rationale for concluding that, for those years for which 
data only exist from the MacCall and Thayer publications, that data 
cannot be considered the best scientific information available for 
making determinations about catch limits for anchovy.
    A primary reason for the discrepancy between NMFS' estimates and 
the MacCall and Thayer estimates is likely the various methodological 
issues with the calculations found in those publications, which are 
described earlier in this preamble. These methodological issues are 
best highlighted when looking at the discrepancy in the estimates for 
2017. In 2017, NMFS scientists estimated the spawning biomass of 
central anchovy to be 308,173 mt using DEPM. The Thayer publication's 
spawning biomass estimate for this same year is 1,169,400 mt--a 
difference of more than 860,000 mt. The DEPM method used by NMFS, like 
the method used in the MacCall and Thayer publications, uses egg and 
larval data; however, unlike the method used in the in MacCall and 
Thayer publications, the DEPM method does not expand that egg and 
larval data into adult biomass using biological data from a different 
time period (which in the case of MacCall and Thayer, was the 1980s). 
This method of expansion was the primary technical flaw identified with 
the MacCall and Thayer methodology, rendering the estimates from those 
publications unreliable for estimating total biomass. NMFS' 2017 DEPM 
estimate does not suffer from this same deficiency because it is a 
direct calculation derived using reproductive information from adult 
fish collected in the same year and same ship-based survey as the egg 
and larval information.
    By using biological data from adult fish and eggs collected in the 
same year, as NMFS did in 2017, there was no need to expand the egg 
data into estimates of biomass-based adult information from a different 
time period, as done in the MacCall and Thayer publications. In 
addition, the 2017 DEPM estimate developed by NMFS was derived using 
egg data from more than just the core CalCOFI region, as was used in 
the MacCall and Thayer publications. The survey data used for this 
estimate was from north of San Francisco, California, to San Diego, 
California, and therefore covered the majority of the U.S. range of 
central anchovy. By comparison, the northern extent of the CalCOFI data 
used in the MacCall and Thayer estimates is near Point Conception, 
California, which is well south of San Francisco, and therefore 
includes less than half of the coastline covered in the NMFS survey. 
Despite using survey data from a larger region and using a 
scientifically-validated method to calculate the biomass of small 
pelagics, NMFS' biomass estimate for 2017 was nevertheless over 860,000 
mt lower than the Thayer estimate for that year.
    These discrepancies in comparable data from both the historical and 
recent estimates, as well as the other biological and technical issues, 
render the estimates from MacCall and Thayer unreliable as a measure of 
the actual population size of central anchovy. These estimates are 
therefore not the best scientific information available on the 
historical annual biomass estimates of anchovy in any given year. 
However, even if NMFS were to consider the 1951-2015 time series from 
MacCall and Thayer as best scientific information available for the 
annual abundance of central anchovy, which it does not, NMFS notes that 
during that 57-year time frame over which the MacCall and Thayer 
publications presented biomass estimates, the biomass only dropped 
below 100,000 mt 15 times, or 26 percent of the time, and only stayed 
below 100,000 mt for more than one year twice over those 57 years: Once 
during the referenced 2009-2015 time period and once during the early 
1950s. NMFS notes further, however, that for the period of purported 
low abundance in the early 1950s, catch of central anchovy in one of 
those years was over double the estimated biomass and three times 
greater in another. Therefore, those biomass estimates are likely 
underestimated. Given the infrequency of such low biomass, NMFS' 
proposed referenced points would have at least a 50 percent chance of 
preventing overfishing over the long term.\21\
---------------------------------------------------------------------------

    \21\ See 50 CFR 600.310(f)(2).
---------------------------------------------------------------------------

Potential Additional Management Measures for Central Anchovy

    Although NMFS has determined that the proposed OFL in combination 
with the proposed ABC and ACL will prevent overfishing into the future, 
NMFS is considering limiting the effectiveness of the ACL in this rule 
to 3 or 4 years. NMFS is considering this deviation from the standard 
practice for stocks in the monitored category in light of the fact that 
NMFS' SWFSC is currently working on a research stock assessment for 
central anchovy that could be completed in late 2021 or early 2022. 
This stock assessment has the potential to provide new information on 
the recent and historical abundance of central anchovy that could 
warrant a change in the currently proposed catch limits. However, NMFS 
also recognizes that the existing framework in the CPS FMP would allow 
the Council to react to such new information and revise the catch 
limits being proposed through this action if the new information 
warranted such a revision. Therefore, NMFS welcomes comments from the 
public on whether the final rule should include a time limit on the 
effectiveness of this rule, and whether that time limit should be 3 or 
4 years.
    NMFS is also considering imposing an alternative accountability 
measure in this rule that would automatically trigger a reduction to 
the ACL if the stock falls below a certain threshold for a certain 
period of time. For example, if NMFS determines that the best 
scientific information available shows that the abundance of the stock 
has or will go below 100,000 mt for two consecutive years, then the ACL 
would be reduced to 10,000 mt. As noted earlier, NMFS is confident that 
the proposed OFL in combination with the proposed ABC and ACL will 
prevent overfishing into the future, is representative of both the 
historical and recent abundance estimates, and takes into account 
potential fluctuations in anchovy biomass. NMFS is interested in 
commenters' views on whether a trigger mechanism such as that described 
in this paragraph is necessary to ensure overfishing is prevented.

Classification

    NMFS is issuing this rule pursuant to section 305(d) of the 
Magnuson-Stevens Act. The reason for using this regulatory authority is 
because this proposed rule must be published under an extremely 
aggressive timeline ordered by the U.S. District Court for the Northern 
District of California, which does not allow for compliance with the 
framework provisions of the CPS FMP. NMFS is issuing these proposed 
regulations under Magnuson-Stevens Act 305(d), 16 U.S.C. 1855(d), 
without a recommendation from the Council.
    This proposed rule has been determined to not be significant for 
purposes of Executive Order 12866.
    This proposed rule is not an Executive Order 13771 regulatory 
action because this rule is not significant under Executive Order 
12866.

[[Page 73453]]

    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act of 1980 
(RFA). The IRFA describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and the legal basis for this action are 
contained at the beginning of this section in the preamble and in the 
SUMMARY section of the preamble. A summary of the analysis follows. A 
copy of the analysis is available from NMFS (see ADDRESSES).
    For RFA purposes only, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (see 50 CFR 200.2). A business primarily 
engaged in commercial fishing (NAICS code 11411) is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $11 million for all its 
affiliated operations worldwide.
    The action being implemented through this proposed rule is the 
establishment of a new OFL, ABC, and ACL for the central anchovy 
subpopulation. In addition to proposing new reference points, NMFS is 
also considering establishing, through this rulemaking, an 
accountability measure that would automatically trigger a reduction to 
the ACL. For example, if NMFS determines that the best scientific 
information available shows that the abundance of the stock has or will 
go below 100,000 mt for two consecutive years, then the ACL will be 
reduced to 10,000 mt.
    The small entities that would be affected by the proposed action 
are the vessels that harvest central anchovy as part of the West Coast 
CPS purse seine fleet. The average annual per vessel revenue in 2017 
for the West Coast CPS finfish small purse seine fleet, as well as for 
the few vessels that target anchovy off Oregon and Washington, was 
below $11 million; therefore, all of these vessels are considered small 
businesses under the RFA. Because each affected vessel is a small 
business, this proposed rule is considered to equally affect all of 
these small entities in the same manner. Therefore, this rule would not 
create disproportionate costs between small and large vessels/
businesses. To evaluate whether this proposed rule could potentially 
reduce the profitability of affected vessels, NMFS compared current and 
average recent historical landings to the proposed ACL (i.e., the 
maximum fishing level for each year). The proposed ACL for central 
anchovy is 25,000 mt, which is slightly higher than the vacated ACL 
(23,573 mt). In 2019, approximately 10,162 mt of central anchovy were 
landed. The annual average harvest from 2010 to 2019 for central 
anchovy was approximately 7,950 mt. Central anchovy landings have been 
well below the proposed ACL in 8 of the past 10 years. Therefore, 
although the establishment of a new ACL for this stock is considered a 
new management measure for the fishery, this proposed action should not 
result in changes in current fishery operations. As a result, the ACL 
proposed in this rule would be unlikely to limit the potential 
profitability to the fleet from catching central anchovy and therefore 
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 what determines 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 options for 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. 
Additionally, this action maintains the management approach set in the 
fisheries management plan (FMP) for stocks in the monitored category, 
which dictates how the OFL and ABC can be set, thereby limiting the 
alternatives for these values. The CPS FMP 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 built into the 
ABC control rule. Although there is no management uncertainty that 
requires reducing the ACL from the ABC, prior environmental analyses 
have only analyzed an ACL up to 25,000 mt, which is also the Council's 
previous determination of OY for the stock. As previously stated, NMFS 
does not expect the proposed reduction in the ABC to negatively impact 
regulated fishermen, as the proposed ACL (25,000 mt) is higher than the 
vacated ACL (23,573 mt).
    As discussed above, this action may also include a biomass 
threshold whereby, if the best scientific information available 
indicates the stock's abundance drops below this threshold, then the 
ACL would be automatically reduced. The reduced ACL has the potential 
to impact regulated fishermen through a consequent reduction in fishing 
opportunity, but the extent of economic impact would depend on a 
variety of factors, including the percentage of the reduction. While a 
temporarily reduced ACL would potentially limit fishing opportunity in 
the near term, which would consequently impose short-term economic 
costs, the purpose of a short-term impact such as this is to sustain 
the central anchovy stock for long-term social and economic benefits. 
However, average landings in this fishery over the last 10 years have 
only been 10,162 mt. Therefore, whether landings would actually be 
limited by such a reduction is unknown. NMFS is not proposing a 
specific biomass threshold in the proposed rule, but rather the option 
to implement one in the final rule dependent on analyses including 
public input. NMFS will further analyze potential economic impacts of a 
specific biomass threshold before adopting one during the final rule 
stage.
    Thus, no significant alternatives to this proposed rule exist that 
would accomplish the stated objectives of the applicable statutes while 
minimizing any significant economic impact of this proposed rule on the 
affected small entities. However, as stated above, this proposed rule 
is not expected to have a significant economic impact on the regulated 
fishermen.

[[Page 73454]]

    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1995.

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

    Dated: November 12, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES

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.  660.511, revise paragraph (k)(1) to read as follows:


Sec.  660.511   Catch restrictions.

* * * * *
    (k) * * *
    (1) Northern Anchovy (Central Subpopulation): 25,000 mt.
* * * * *
[FR Doc. 2020-25334 Filed 11-17-20; 8:45 am]
BILLING CODE 3510-22-P