[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Proposed Rules]
[Pages 89358-89361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28482]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 231220-0313; RTID 0648-XD112]


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.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes to revise the overfishing limit (OFL) and 
acceptable biological catch (ABC), but maintain the annual catch limit 
(ACL), for the central subpopulation of northern anchovy (CSNA) in the 
U.S. exclusive economic zone (EEZ) off the West Coast under the Coastal 
Pelagic Species (CPS) Fishery Management Plan (FMP). NMFS is proposing 
an OFL of 243,779 metric tons (mt) and ABC of 60,945 mt, and an ACL of 
25,000 mt. Under current regulations, if the ACL for this stock is 
reached or projected to be reached in a fishing year (January 1-
December 31), then fishing will be closed until it reopens at the start 
of the next fishing year. This rulemaking is intended to conserve and 
manage CSNA off the U.S. West Coast.

DATES: Comments must be received by January 26, 2024.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2023-0136, by the following method:
     Electronic Submissions: Submit all public comments via the 
Federal e-Rulemaking Portal. Go to https://www.regulations.gov and 
enter NOAA-NMFS-2023-0136 in the Search box. Click on the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method or received after 
the end of the comment period may not be considered by NMFS. All 
comments received are a part of the public record and will generally be 
posted for public viewing on https://www.regulations.gov without 
change. All personal identifying information (e.g., name, address, 
etc.), confidential business information, or otherwise sensitive 
information submitted voluntarily by the sender will be publicly 
accessible. NMFS will accept anonymous comments (enter ``N/

[[Page 89359]]

A'' in the required fields if you wish to remain anonymous).

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

SUPPLEMENTARY INFORMATION: The CPS fishery in the U.S. EEZ off the West 
Coast is managed under the CPS FMP in coordination with the Pacific 
Fishery Management Council (Council). The CPS FMP was developed 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act or MSA; 16 U.S.C. 1801 et seq.). The CPS FMP 
is implemented by regulations at 50 CFR part 660, subpart I.

Background on CSNA Management

    CSNA is managed under multi-year catch limits and quantitative or 
qualitative reviews of available abundance data without required 
regular stock assessments or required annual adjustments to target 
harvest levels. This is in part due to the fact that it does not have 
biologically significant catch levels and, therefore, does not require 
intensive harvest management to ensure overfishing is prevented. 
Allowable catches are set well below maximum sustainable yield (MSY) 
levels to ensure overfishing does not occur. As a result, anchovy has 
been adequately managed by tracking landings and examining available 
abundance indices. CSNA may also be subject to management measures such 
as catch allocation, gear regulations, closed areas, or closed seasons.
    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. 
Amendment 13 conformed the CPS FMP with the 2007 reauthorization of the 
Magnuson-Stevens Act and revision to the Magnuson-Stevens Act National 
Standard 1 guidelines at 50 CFR 600.310, which, for the first time, 
required the establishment of ACLs for management unit species (with 
exceptions). Maintaining the existing reference points and the primary 
harvest control rules for CSNA, 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 CSNA is set 
equal to its existing MSY value, if available, and ABC is set at 25 
percent of the OFL. This 75 percent reduction from the OFL to the ABC 
is to provide a buffer for scientific uncertainty surrounding the OFL. 
It was recognized at the time that due to the multi-year nature of the 
management approach, in combination with the biology of CSNA, there 
would be uncertainty associated with the OFLs; 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. The ACL is then set either equal to or lower than the ABC.
    The OFL is set equal to an estimate 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. 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, the Council chose this type of multi-year 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 may 
fluctuate.
    Although the allowable catch levels are not required to be adjusted 
each year for CSNA, the Council is required by regulation to produce an 
annual Stock Assessment and Fishery Evaluation report, which documents, 
among other scientific information, significant trends or changes in 
the resource, marine ecosystems, and fishery over time, and information 
on which to base catch specifications and status determinations.\1\ The 
report documents trends in landings, changes in fishery dynamics and 
available population, and biological information for all CPS stocks and 
is available for Council review each year. The purpose of this report 
is to provide the Council with 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 optimum yield (OY).
---------------------------------------------------------------------------

    \1\ See 50 CFR 600.315(d).
---------------------------------------------------------------------------

    Additionally, in November 2021, the Council adopted into its 
Council Operating Procedures a flowchart and timeline to facilitate 
regular check-ins on CSNA management. This timeline includes conducting 
a new stock assessment every 8 years, the first being the one that 
occurred in 2022, and check-ins every 2 years between those assessments 
when the Council could revisit the ABC. This flowchart was developed by 
the Council's Coastal Pelagic Species Management Team (CPSMT) in 
coordination with the Council's CPS Advisory Subpanel and SSC.

Purpose of the Proposed Rule

    On December 31, 2020, NMFS published a final rule in response to a 
September 2020 court order \2\ directing NMFS to implement new 
reference points for CSNA (85 FR 86855). That rule established the 
current reference points for CNSA--i.e., an OFL of 119,153 mt, an ABC 
of 28,788 mt, and an ACL of 25,000 mt. Because NMFS had to publish the 
rule within 120 days of the court's ruling, and therefore outside the 
Council process, NMFS expressed intent to work with the Council to 
implement a new rule based on Council recommendations in the coming 
years. NMFS was again sued on this 2020 rule.\3\ Although the Court 
ultimately upheld the referent points implemented in the December 2020 
rule in a June 2022 order, NMFS and the Council have been working to 
review and implement new reference points for CSNA through the Council 
and FMP process.
---------------------------------------------------------------------------

    \2\ This order was issued in Oceana v. Ross, et al., Case No. 
19-cv-03809-LHK (N.D. Cal.).
    \3\ Oceana v. Raimondo, et al., Case No. 21-cv-00736-VC (N.D. 
Cal.).
---------------------------------------------------------------------------

    At the Council's June 2022 meeting, the Council's SSC reviewed the 
Southwest Fisheries Science Center's recently completed benchmark 
assessment for CSNA and endorsed it as the best scientific information 
available for management of CSNA. Although trends in anchovy abundance 
have been tracked over time, including the development of abundance 
estimates of northern anchovy since 2015, this was the first stock 
assessment for CSNA since 1995.
    The SSC determined that utilizing the biomass time series from this 
new assessment to calculate a new OFL represented a better OFL than the 
MSY-based default harvest control rule. The SSC utilized an average of 
the last 7 years of biomass estimates from the stock assessment, as 
well as an EMSY (exploitation rate for deterministic 
equilibrium MSY) from the assessment to recommend an OFL. The FMP calls 
for applying a ``DISTRIBUTION'' term to biomass estimates that is an 
estimate of the portion of the population in foreign waters. A 
DISTRIBUTION of 0.82 was used to obtain an OFL value for U.S. waters 
specifically, which resulted in a U.S. OFL of 243,779 mt. As mentioned 
above, per the FMP the OFL is then reduced by 75 percent which equated 
to

[[Page 89360]]

an ABC of 60,945 mt, which was endorsed by the SSC. Although the 
Council could have set the ACL equal to the ABC, based on socioeconomic 
and ecological considerations, they chose to recommend a lower ACL of 
25,000 mt.

Proposed Reference Points

    Based on the best available scientific information and 
recommendations from the SSC and CPSMT, the Council recommended, and 
NMFS proposes to implement, annual reference points for CSNA including 
an OFL of 243,779 mt, an ABC of 60,945, and an ACL of 25,000 mt. 
Because this ACL value is already in place (see 50 CFR 660.511(k)), no 
regulatory changes are necessary. NMFS has made the preliminary 
determination that these annual reference points are supported by the 
best scientific information available and will prevent overfishing. 
These proposed specifications are intended to conserve and manage CSNA 
off the U.S. West Coast. All sources of catch would be accounted for 
against the ACL, including any fishing occurring as part of an exempted 
fishing permit, the live bait fishery, and other minimal sources of 
harvest, such as incidental catch in CPS and non-CPS fisheries and 
minor directed fishing. Under current regulations at 50 CFR 660.509(a), 
if catch reaches the ACL, the NMFS West Coast Regional Administrator 
will publish a notice in the Federal Register to announce the closure 
of the fishery until the next fishing season (January 1). Additionally, 
to ensure that the regulated community is informed of any closure, NMFS 
will make announcements through other means available, including emails 
to fishermen, processors, and state fishery management agencies. These 
reference points would remain in place until new information or 
concerns arise. 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.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
the CPS FMP, other provisions of the MSA, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule is not subject to the requirements of Executive 
Order 12866.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with the tribal 
representative on the Council.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities, 
for the reasons discussed below.
    For Regulatory Flexibility Act (RFA) purposes only, NMFS has 
established a small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing (see 50 
CFR 200.2). A business primarily engaged in commercial fishing (North 
American Industry Classification System (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 purpose of this proposed rule is to conserve and manage CSNA by 
preventing overfishing, while still allowing harvest opportunity among 
differing fishery sectors. This will be accomplished by implementing 
these annual specifications in the U.S. EEZ off the West Coast. The 
small entities that would be affected by the proposed action, if 
adopted, are the vessels that would be expected to harvest CSNA as part 
of the West Coast CPS small purse seine fleet. In the last 10 years, an 
average of 25 such vessels have made CSNA landings each year. In the 
most recent year (2022), 34 such vessels made CSNA landings. From 2012 
to 2022, the average annual revenue per vessel for all CPS vessels, 
including the 34 vessels potentially affected by this rulemaking, was 
well below the threshold level of $11 million. These 34 vessels that 
made CSNA landings averaged around $1 million in annual revenue, and 
therefore are considered small businesses under the RFA. We do not 
collect or have access to information about affiliation between vessels 
or affiliation between vessels and processing entities in this fishery, 
or receipts in Alaska, Hawaii, or international fisheries, so it could 
be possible that some impacted entities may exceed $11 million in ex-
vessel revenue. However, based on available data, NMFS has determined 
this to be unlikely. Because each affected vessel is a small business, 
this proposed rule, if adopted, is considered to equally affect all of 
these small entities in the same manner. Therefore, this rulemaking 
would not create disproportionate costs between small and large 
vessels/businesses.
    NMFS used the ex-vessel revenue information for a profitability 
analysis, as the cost data for the harvesting operations of CPS finfish 
vessels was limited or unavailable. Because the ACL is not changing, 
this proposed rule, if adopted, is not expected to change the potential 
profitability for these small entities compared to the previous fishing 
year. Therefore, this proposed rule is not expected to have a 
significant economic impact on the 34 small entities described above.
    In addition, CSNA is only one component of the multi-species CPS 
fishery. Therefore, the revenue derived from harvesting CSNA is 
typically only one of the sources of fishing revenue for the commercial 
vessels that participate in the CPS fishery. For example, many vessels 
in California also harvest mackerel and squid, as well as incidental or 
live-bait catch of sardine, as the directed fishery is currently 
closed. CPS vessels typically rely on multiple species for 
profitability because abundance of CSNA, 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. In the event that this proposed 
action might result in any unexpected decrease in the annual revenue 
derived from CSNA by the affected small entities, those small entities 
could be expected to compensate for the decrease by harvesting other 
CPS stocks.
    For the reasons stated above, this proposed rule, if adopted, would 
not have a significant economic impact on a substantial number of small 
entities. As a result, an Initial Regulatory Flexibility Analysis is 
not required, and none has been prepared.

[[Page 89361]]

    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act. There are no 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed action.

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

    Dated: December 20, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-28482 Filed 12-26-23; 8:45 am]
BILLING CODE 3510-22-P