Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 86855 

1 16 U.S.C. 1851(a)(1) and (2); see also, 50 CFR 

600.310 and 600.315. 

2Market squid is statutorily exempt from the 

general requirement to be managed using an ACL 

because of its short life-cycle. 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 201223–0354] 

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: Final rule. 

SUMMARY: NMFS issues this final 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 

implementing 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: Effective February 1, 2021. 

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

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 annual catch limits (ACLs) 

for stocks in the active category are set 

much closer to their respective 

overfishing limit (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. 

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 acceptable 

biological catch (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 


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3See 50 CFR 600.315(d). 

4The 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. 

5Conrad, J.M. 1991. A Bioeconomic Model of the 

Northern Anchovy. Administrative Report LJ–91– 

26. La Jolla, CA: NMFS Southwest Fisheries Science 

Center. 

7MacCall, 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. 

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 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. This management 

framework comports with MagnusonStevens Act’s National Standard 1 

guidelines, which provide Councils the 

jurisdiction to develop ABC control 

rules and risk policies according to their 

fishery management objectives 

(ecological, economic, and social) for 

the respective FMP. The extent of risk 

aversion the Council decides is based on 

social, economic, biological, and 

ecological factors. To comply with the 

Magnuson-Stevens Act’s National 

Standard 1 guidelines, the Council’s 

ABC must account for scientific 

uncertainty in the OFL and, at a 

minimum, their ABC risk policy must 

provide at least a 50 percent chance of 

preventing overfishing when the stock’s 

catch is equal to the ABC. Although this 

ABC control rule is not subject to this 

rulemaking, NMFS has determined that 

the ABC control rule for the central 

subpopulation of northern anchovy 

(hereafter referred to as ‘‘central 

anchovy’’) appropriately takes into 

account uncertainty in its OFL level. 

Additionally, the central anchovy 

fishery is subject to strict catch 

accounting and monitoring, therefore 

the fishery is able to be closed before 

exceeding the ABC level further 

ensuring that overfishing does not 

occur. 

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 

(see 50 CFR 600.315(d)).3 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 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. 

The 2016 Rule and Oceana I 

On October 26, 2016, NMFS 

published a final rule (hereafter referred 

to as the ‘‘2016 Rule’’) (81 FR 74309) 

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.4 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 5). 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 (see 16 U.S.C. 

1852(g)).6 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. 

Oceana subsequently challenged the 

2016 Rule in Oceana v. Ross, et al., Case 

No. 16–CV–06784–LHK (N.D. Cal.) 

(hereafter referred to as ‘‘Oceana I’’), in 

part, because a recent publication at the 

time, MacCall et al. 2016 7 (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 credible estimates for 

the entire central anchovy stock. The 

primary rationale for NMFS making this 

determination was that multiple public 

scientific 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 suitable for 

estimating the total abundance of 

anchovy (which is necessary in this 

context for calculating an OFL) and that 

using data from only a portion of the 

California Cooperative Fisheries 

Investigation (CalCOFI) survey also does 

not allow for estimating total anchovy 

biomass. The reason for this latter point 

is that the spatial scale of the data used 

does not encompass the entire 

population range of central anchovy. 

The authors of the MacCall publication 

themselves reported high uncertainty in 

the estimates and cautioned against 

using them as independent measures of 

biomass. 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. 

The Court found, however, that the 

2016 Rule for central anchovy, 

including the ACL it established, 

violated the Magnuson-Stevens Act and 

the Administrative Procedure Act 

(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 


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8The 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. 

9 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. 

10See 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/agendaitem-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/agendaitem-c-3-supplemental-attachment-3.pdf/. 11Thayer, J.A., A.D. MacCall, and W.J. Sydeman. 

2017. California anchovy population remains low, 

2012–2015. CalCOFI Report Vol. 58. 12See New Marine Heatwave Emerges off West 

Coast, Resembles ‘‘the Blob’’ Available at: https:// 

www.fisheries.noaa.gov/feature-story/new-marineheatwave-emerges-west-coast-resembles-blob. 

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 longterm 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 (84 FR 25196). 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 

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.8 The three 

abundance estimates NMFS used were 

from NMFS’ 2016 and 2018 acoustictrawl 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. 

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 9). 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. 

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,10 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 and took the concerns 

previously expressed by the Court into 

account. 

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 11

(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.12

After NMFS’ second review and 

consideration of the MacCall 

publication and its results, NMFS found 


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13See 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/. 

14See 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/agendaitem-g-4-a-swfsc-report.pdf/. 

15Leisling, A.W. et al. State of the California 

Current 2013–14: El Nino Looming. CalCOFI Report 

Vol. 55. 

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, in 

Oceana v. Ross, et al., Case No. 19–CV– 

03809–LHK (N.D. Cal.) (hereafter 

referred to as ‘‘Oceana II’’). 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, based on the record presented of 

the 2019 Rule, the MacCall and Thayer 

publications constituted 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 

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.’’ 

Purpose of the Final Rule 

On September 2, 2020, in Oceana II, 

the U.S. District Court for the Northern 

District of California vacated and 

remanded to NMFS the May 31, 2019 

final rule (hereafter referred to as the 

‘‘2019 Rule’’) (84 FR 25196) setting the 

OFL, ABC, and ACL for central 

anchovy. The Court ordered NMFS to 

promulgate a new rule in compliance 

with the Magnuson-Stevens Act and the 

APA within 120 days of the Court’s 

order. As described above, NMFS had 

issued the 2019 Rule pursuant to a 2018 

decision from the same Court in Oceana 

I, in which the Court had vacated the 

ACL established in a 2016 final rule. 

NMFS provided additional background 

information on Oceana I and Oceana II 

in the preamble to the proposed rule (85 

FR 73446). 

NMFS is issuing this rule in 

accordance with the Court’s order in 

Oceana II to promulgate a new rule in 

compliance with the Magnuson-Stevens 

Act and the APA. To ensure 

compliance, NMFS is setting an OFL, 

ABC, and ACL for central anchovy in 

accordance with the CPS FMP and in a 

manner that will protect the stock from 

overfishing and accommodate the needs 

of fishing communities. Although 

NMFS is issuing this rule and revising 

the values from the 2019 Rule as 

required by the Oceana II order, NMFS 

has appealed that order to the Ninth 

Circuit Court of Appeals. If the Court of 

Appeals reverses the decision in Oceana 

II, then NMFS will reinstate the 

reference points from the 2019 Rule 

through a notice in the Federal Register. 

NMFS’ 2020 Review of the MacCall and 

Thayer Publications 

Although reference points 

implemented 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 13

that included CPS experts from around 

the world, as well as in an October 2016 

report 14 from NMFS scientists. Both of 

these reports were also subsequently 

endorsed by the Council’s independent 

scientific review body (i.e., the SSC). 

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 15). The focus of the 

workshop was to review the available 

information on the abundance of 


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16See 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/. 

17Warzybok 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. 

18See 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-8f1a1da42a0bb81e.pdf&fileName=FI%20Letter%

20to%20PFMC%20for%20Nov%

202018%2C%20CSNA%20biomass%20update.pdf. 

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 

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.16

Specifically, the SSC stated: 

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) 17 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. 

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 

2015,18 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. 

During the preparation of the 

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 


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19See 50 CFR 600.310(f)(2). 

20The 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. 

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 

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 MacCall and Thayer publications, 

the DEPM method uses information 

from adult fish and eggs and larvae from 

the same year, and therefore does not 

need to expand 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. This 

degree of difference in abundance can 

have a large impact when explicit 

values are needed to calculate reference 

points like is being done through this 

action. Which is why previous scientific 

reviews of the estimates in MacCall and 

Thayer stated that although they 

provided information on trends or 

relative abundance levels, they should 

not be used as total estimates. For 

example, if NMFS were to replace the 

2017 estimate used in this rulemaking 

with that from the Thayer publication it 

would result in a nearly 13,000 mt 

difference in the ABC calculation. 

These discrepancies in comparable 

data from both the historical and recent 

estimates, as well as the other biological 

and technical issues stated above, 

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 to be used for management 

purposes. 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 more 

importantly, 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.19

Final Reference Points 

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 

develop 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 CPS 

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). This 

approach included averaging 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.20 The four 

abundance estimates NMFS used were 

from NMFS’ 2016, 2018, and 2019 ATM 

surveys, which were 151,558 mt, 

723,826 mt, and 810,634 mt 

respectively, and NMFS’ 2017 DEPM 

survey, which was 308,173 mt. 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. 


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21 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. 

For potentially deriving an EMSY, this 

analysis used the most current timeseries data available, which comes from 

the last model-based stock assessment 

for central anchovy completed for 

formal management purposes (Jacobson 

et al. 1995).21 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. More information on the 

selection of this data and the 

calculations is provided in the preamble 

to the proposed rule. 

In making this decision, NMFS 

considered the Court’s two primary 

findings in Oceana II: 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 thoroughly reviewed 

the data in these two publications 

during the preparation of the proposed 

rule and this final rule, and has 

determined that they do not constitute 

the best scientific information available 

for setting or determining appropriate 

reference points for central anchovy. 

Additionally, even if NMFS were to 

consider that information as best 

scientific information available, it 

would not change NMFS’ determination 

that the data we have used, in 

combination with the CPS FMP’s ABC 

control rule risk policy for stocks in the 

monitored category, result in reference 

points that are consistent with the dual 

mandates of National Standard 1 

(preventing overfishing while achieving, 

on a continue basis, OY) and other 

Magnuson-Stevens Act provisions. 

The 2019 method for calculating 

reference points results in an OFL of 

119,153 mt and an ABC of 29,788 mt. 

Although previous ACLs for northern 

anchovy have been set equal to the 

calculated AC level, for this action 

NMFS is implementing an ACL less 

than the ABC level at 25,000 mt. 

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. 

In the proposed rule, NMFS notified 

the public that the proposed reference 

points might change if finalized ATM 

estimates for 2015 and 2017 could be 

incorporated into the OFL calculation. 

Although a reexamination and review of 

an estimate for 2015 has begun, that 

process is still ongoing to determine 

whether one can be finalized and 

therefore NMFS was not able to 

consider it as part of this rulemaking. As 

part of this process NMFS is also 

reexamining its 2016 ATM estimate, 

however at this point in time the 2016 

estimate used to calculate the OFL in 

this rulemaking is still considered best 

scientific information available for that 

calculation. With regards to 2017 

information, NMFS determined it was 

appropriate to only use the DEPM 

estimate from 2017 as was done in the 

2019 rule. Therefore, NMFS is 

implementing the OFL, ABC and ACL 

from the proposed rule of 119,153 mt, 

29,788 mt, and 25,000 mt. 

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 

notification in the Federal Register 

announcing the date of any such 

closure. 

Potential Additional Management 

Measures for Central Anchovy 

The CPS FMP states that ACLs for 

stocks in the monitored stocks category 

are specified for multiple years until 

such time as the species becomes 

actively managed or new scientific 

information becomes available to 

warrant a change to them. However, in 

the proposed rule, NMFS solicited 

public comment on the potential to 

limit the effectiveness of the final rule 

to 3 or 4 years. Additionally, NMFS 

solicited public comment on the 

potential of setting a biomass threshold 

whereby the ACL would automatically 

be reduced if the anchovy population 

were to fall below that threshold for a 

certain period of time. After further 

review of these potential measures, and 

in consideration of the public comments 

received, NMFS has decided not to 

explicitly limit the effective period of 

the ACL or implement a minimum 

biomass threshold in this rule. The 

primary reason for this decision is that 

NMFS has determined that the OFL, in 

combination with the ABC and ACL 

finalized in this rule, are sufficient to 

prevent overfishing over the long term 

and are based on the best scientific 

information available. 

Although NMFS is not implementing 

an explicit expiration of the ACL in this 

action, it is NMFS’ expressed intent to 

work with the Council to have the 

reference points being implemented 

through this action be replaced by 

Council recommended ones sometime 

within the next two years. To 

accomplish this, NMFS intends to ask 

the Council to schedule an agenda item 

in the spring of 2022 to develop 

recommendations to NMFS. Under the 

timelines the Court imposed for 

promulgating both this rule and the 

2019 Rule it replaced, it was not 

possible to thoroughly engage the 

Council in setting a multi-year ACL for 

this stock. Instead, NMFS had to 

develop and implement these actions 

unilaterally pursuant to the general 

Secretarial authority of the Section 

305(d) of the Magnuson-Stevens Act (16 

U.S.C. 1855(d)), without 

recommendation from the Council. 

NMFS views the Council process, both 

the public engagement and scientific 

review aspects, as important steps in 

determining and setting appropriate 

catch levels for a fishery. This is the 

expressed design and purpose of the 

Councils. Because of the compressed 

timelines under which NMFS had to 

promulgate both this rule and the 2019 

Rule, the Council did not have the 

opportunity to conduct its normal 

public meeting process and make formal 

recommendations to NMFS. 

Additionally, the Council had limited 

time to review and provide feedback to 

NMFS on this rule or the 2019 Rule. The 

Council highlighted this time-constraint 

in their public comment on the 2019 

Rule and during their November 2020 

Council meeting where the proposed 

rule published mid-meeting, not 

allowing some advisory bodies to 

review and comment on the proposed 

rule, which led the Council to decline 

to provide public comments on this 

action. During both Council meetings 

the Council also generally expressed 

that they also would prefer that 

rulemakings such as this action go 

through the Council process instead of 

unilaterally by NMFS. Although NMFS 

cannot require the Council to take 

action over the next two years, NMFS 

intends to engage and work with the 

Council to move towards them taking 

their own action on this stock. Such a 

subsequent rule may not necessarily 

result in reference points that are 

different from those being implemented 

in this final rule, however they will 

have the benefit of having been 

recommended through the public 

Council process. 

Related to NMFS’ intention to work 

with the Council in the near future to 

develop a recommendation that would 

replace the reference points set through 

this action, is potential for new data and 

biological information on northern 

anchovy may become available over the 

next 6 to 18 months in the form of new 

or revised ATM estimates from 2015 


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86862 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 

22 In the proposed rule, NMFS stated that the 

SWFSC was investigating the possibility to finalize 

an ATM estimate for 2015. Since the proposed rule 

was published, the SWFSC is also investigating the 

possibility of revising its 2016 ATM estimate. 

Despite this potential reexamination, it is NMFS’ 

determination that the existing 2016 estimate, the 

one used in this rulemaking, represents the best 

scientific information for the population size in that 

year. 

and 2016,22 as well as through a 

research stock assessment. NMFS 

expects that if any of this work is 

completed it will raise questions as to 

whether the reference points finalized 

through this action will need to be 

revised. Although NMFS will review 

this information to determine whether it 

warrants a revision to the reference 

points set through this rule, as stated 

above, NMFS believes that the Council 

process is the more appropriate arena 

for decisions on these reference points 

to be made. If and when available, 

NMFS will present this information to 

the Council to allow them to make such 

a decision. NMFS hopes that, given 

there will likely be questions as to 

potential revisions to the catch levels 

based on this new information, having 

the Council take action in the near term 

will reduce some uncertainty in terms of 

the timing of a potential change for the 

affected fishing industry that relies on a 

certain level of stability to be able to 

plan for the future and maintain certain 

markets. 

NMFS’ desire to have the Council 

replace this rule in the near future 

however, should not be seen as an 

indication that NMFS has any concerns 

about the ability of the reference points 

being implemented through this action 

to protect against overfishing in 2023 

and beyond or an indication that a 

subsequent rule will necessarily result 

in reference points that are different 

than those being implemented in this 

final rule. As always, the decision to 

revise the reference points will be 

guided by the best scientific information 

available and compliance with 

Magnuson-Stevens Act and other 

applicable laws. 

Public Comments and Responses 

On November 18, 2020, NMFS 

published a proposed rule for this 

action and solicited public comments 

(85 FR 73446), with a public comment 

period that ended on December 3, 2020. 

NMFS received only two comment 

letters on the proposed rule, each 

containing multiple comments. One 

letter was submitted by the California 

Wetfish Producers Association (CWPA) 

and expressed support for the proposed 

reference points. The other letter one 

was submitted jointly by two 

environmental non-governmental 

organizations, Oceana and Earthjustice, 

and expressed concern over aspects of 

the proposed rule and its ability to 

prevent overfishing. NMFS notes that 

some components of the comment letter 

from Oceana and Earthjustice included 

recommendations to change the default 

ABC control rule for monitored stocks 

and the central anchovy management 

framework, but such measures were not 

within the scope of this rulemaking, and 

therefore NMFS did not respond to 

those comments. NMFS encourages 

Oceana and Earthjustice to continue 

bringing concerns over the central 

anchovy management framework to the 

Council. NMFS summarizes and 

provides responses to the relevant 

components of both comments below. 

NMFS made no changes to the proposed 

rule in response to the comments 

received. 

Comment 1: The CWPA, a primary 

CPS industry representative, submitted 

a public comment in support of the 

proposed reference points for central 

anchovy and NMFS’s process for their 

development. In regards to the potential 

additional management measures, the 

CWPA stated that they are not opposed 

to the concept of additional 

management measures for central 

anchovy, but feel those concepts should 

be developed stepwise through the 

Council process with scientific and 

stakeholder input as opposed to 

enforced via a unilateral action by 

NMFS. 

Response: NMFS agrees that the 

appropriate process for making changes 

to anchovy management, including the 

additional management measures 

described in the proposed rule, is 

through the traditional Council process. 

Comment 2: Oceana and Earthjustice 

stated that the proposed reference 

points were not set using the best 

scientific information available, and the 

rule therefore violates MagnusonStevens Act National Standard 2. 

Specifically, the commenters faulted 

NMFS for not using the biomass 

estimates from 2009–2014 that were 

published in the MacCall and Thayer 

publications, which the commenters 

contend constitute the best scientific 

information available for past 

populations sizes of central anchovy 

and fluctuations in those sizes from one 

year to the next. The commenters spent 

considerable time in their submission 

explaining why they believe NMFS’ 

reasoning for not using the biomass 

estimates in the McCall and Thayer 

publications is baseless. 

Response: NMFS used the best 

scientific information available to 

determine the OFL for central anchovy 

and the best scientific information 

available supports NMFS determination 

that the reference points, in particular 

the OFL and ABC, being set by this 

action are consistent with the dual 

mandates of National Standard 1 

(preventing overfishing while achieving, 

on a continuing basis, OY) and other 

Magnuson-Stevens Act provisions. As 

described in the preamble of the 

proposed rule, NMFS disagrees that the 

MacCall and Thayer publications 

constitute the best scientific information 

available for setting central anchovy 

reference points or that they provide 

novel information on the biology or 

population dynamics of northern 

anchovy, factors that are already 

included in the risk policy of the ABC 

control rule, that invalidate the 

reference points set through this rule. 

NMFS has repeatedly stated that it 

agrees that the MacCall and Thayer 

biomass estimates are useful in that they 

demonstrate and support the general 

trend that NMFS has also observed in 

the naturally fluctuating central 

anchovy abundance; however, their 

high degree of uncertainty, which the 

commenter regularly points out in their 

comment letter, makes them 

inappropriate for use as single point 

biomass estimates in any given year 

upon which to base catch levels. As 

stated in the preamble to this rule 

however, out of a desire to be 

deferential to the Court’s decision and 

to ensure full consideration of all the 

information, NMFS re-reviewed both 

MacCall and Thayer publications to 

evaluate whether their biomass 

estimates could be used to calculate 

new reference points or whether the 

information included in them somehow 

invalidated NFMS reference points. To 

this end, NMFS provided new, 

extensive analysis to better explain its 

decision to not use the MacCall and 

Thayer biomass estimates—see NMFS’ 

2020 Review of the MacCall and Thayer 

Publications in the preamble to the 

proposed rule and this final rule. After 

a thorough review and additional 

consultation with the SWFSC, NMFS 

has found rational basis for not using 

their biomass estimates, and has 

determined that the biomass estimates 

in these publications do not invalidate 

the references being set through this 

action. NMFS has instead determined 

that the best scientific information 

available for setting new reference 

points under the timeline provided by 

the Court, as well as to address the 

Court’s concerns from Oceana I, is the 

SWFSC’ recent ATM and DEPM 

abundance estimates described in the 

Final Reference Points section of this 

rule. 


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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 86863 

Contrary to Oceana and Earthjustice’s 

assertion, these values were not chosen 

arbitrarily and include both relatively 

high and low abundance estimates. For 

example, the 2016 ATM estimate 

(151,558 mt) and the 2017 DEPM 

estimate (308,173 mt) are lower than 60 

and 50 percent of the 57 years of 

biomass estimates in the Thayer 

publication, respectively. NMFS also 

points out that if we were to use the 

average from the biomass estimates 

provided in appendix I of Oceana and 

Earthjustice’s comment letter (500,293 

mt) it would result in an OFL of 119,570 

mt; a value slightly higher than the OFL 

being implemented by NMFS. 

Comment 3: Oceana and Earthjustice 

stated that the proposed reference 

points will not prevent overfishing over 

the long term without the 

implementation of additional 

management measures, and the rule 

therefore violates Magnuson-Stevens 

Act National Standard 1. Oceana and 

Earthjustice specifically stated that the 

proposed reference points should be 

effective for only one year, or at most 

two, and if the effective period is greater 

than one year, then NMFS should 

include a minimum biomass threshold 

below which the directed fishery is 

closed and the ACL is reduced. 

Response: The commenters 

misunderstand the requirements of the 

Magnuson-Stevens Act and the intent of 

the National Standard 1 guidelines. 

Under Oceana and Earthjustice’s 

premise, if NMFS sets a multi-year ACL, 

it must set a drastically low ACL simply 

because the stock dropped to low levels 

once in the last 63 years to ensure that 

over the next 63 years, there is a 100 

percent chance that overfishing will 

never occur. The National Standard 1 

guidelines state that, ‘‘the Council’s risk 

policy for the ABC control could be 

based on an acceptable probability (at 

least 50 percent) that catch equal to the 

stock’s ABC will not result in 

overfishing, but other appropriate 

methods can be used.’’ NMFS 

demonstrated in the preamble to the 

proposed rule and this final rule that the 

new reference points more than satisfy 

this legal requirement. As part of the 

commenters’ claim that the reference 

points set through this rule will not 

prevent overfishing is a statement that 

central anchovy biomass frequently 

drops to less than 10 percent of longterm averages; however, based on the 

long-term average biomass estimate 

from the Thayer publication, the 

biomass only dropped below that longterm average in 9 over the 57-year time 

series, which does not seem to qualify 

as ‘‘frequently.’’ Therefore, even if 

NMFS were to consider the MacCall and 

Thayer biomass estimates as the best 

scientific information available for 

analyzing long-term trends in central 

anchovy abundance, the 25,000-mt ACL 

would still meet the mandates of 

Magnuson-Stevens Act standards. 

Furthermore, if the 1951–2015 

published time series from MacCall and 

Thayer was used, 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. 

Although the ABC control rule used in 

this action is not subject to this 

rulemaking, it is NMFS’ determination 

that the risk policy incorporated into 

that control rule, more than accounts for 

the infrequent potential for the stock to 

decline to such low levels. 

Regarding Oceana and Earthjustice’s 

specific requests for additional 

management measures, see the Potential 

Additional Management Measures 

section earlier in this preamble. 

Although NMFS solicited public 

comment on potential additional 

management measures, NMFS has 

determined that they are not necessary 

to prevent overfishing, for all the 

reasons stated in that section. 

Comment 4: Oceana and Earthjustice 

stated that the reference points will not 

provide adequate forage for marine 

predators, including ESA-listed marine 

predators when central anchovy 

abundance is low. 

Response: Per the Magnuson-Stevens 

Act’s National Standard 1, NMFS must 

set catch limits such that the fishery 

achieves OY, which is defined as, ‘‘the 

greatest overall benefit to the Nation, 

particularly with respect to food 

production and recreational 

opportunities, and taking into account 

the protection of marine ecosystems.’’ 

The 119,153-mt OFL was already 

substantially reduced to an ABC of 

29,788 mt because of the 75 percent 

scientific uncertainty buffer, which 

includes ecological considerations like 

predator consumption. The ABC was 

then further reduced to an ACL of 

25,000 mt. NMFS reasonably 

determined that no further reduction to 

the ACL was necessary because there is 

no evidence that harvest up to the ACL 

over the long term will cause harm to 

anchovy predator species through prey 

removal. Central anchovy biomass is 

driven primarily by environmental 

conditions, not by the small commercial 

take in the central anchovy fishery. 

Oceana has in multiple instances 

claimed that NMFS’s central anchovy 

reference points do not provide 

adequate forage for marine predators, 

yet has never presented any direct 

evidence that the small commercial 

fishery for central anchovy results in a 

lack of forage availability for any 

species, even in circumstances of low 

anchovy biomass. For example, there 

was no evidence of direct competition 

between the fishery and anchovy 

predators during the years Oceana and 

Earthjustice purport that the anchovy 

population was low. Although it is true 

that some predators in southern 

california experienced decreased food 

availability during the 2014–2015 time 

period, these predators, such as the 

Brown Pelican and California sea lions, 

neither of which are endangered 

species, have evolved explicit 

reproductive and foraging strategies in 

response to the natural fluctuations of 

their prey. NMFS notes that the time 

frame for which the commenters 

highlight adverse effects to some marine 

predators are the same years when 

highly unusual environmental 

conditions shifted many fish stocks out 

of their typical geographic range, as was 

the case for central anchovy in 2014 and 

2015. 

Much of Oceana and Earthjustice’s 

commentary about ESA analysis 

addresses concerns beyond the scope of 

the proposed action. Relevant to this 

action, the commenters did not 

introduce any new scientific 

information that would require NMFS to 

reinitiate consultation under ESA. 

NMFS determined that these harvest 

specifications fall well within the scope 

of impacts to ESA-listed species, 

including listed marine predators, 

considered under prior consultations for 

the CPS FMP, and that fishing activities 

pursuant to this rule are not likely to 

jeopardize the continued existence of 

any endangered or threatened species 

under the jurisdiction of NMFS or result 

in the destruction or adverse 

modification of critical habitat of any 

such species. 

Comment 5: Oceana and Earthjustice 

criticized NMFS’ decision to base the 

proposed catch limits on biomass 

estimates from 2016–2019, claiming that 

NMFS purposefully omitted data from 

the previous 7 years of low abundance— 

i.e., MacCall and Thayer’s biomass 

estimates from 2009–2014 and NMFS’ 

own ATM estimate from 2015. 

Response: After extensive scientific 

review and additional consultation with 

the SWFSC, NMFS has determined that 

the SWFSC’s 2016, 2018, and 2019 ATM 

abundance estimates and 2017 DEPM 

abundance estimate constitute the best 


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86864 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 

scientific information available for 

setting new central anchovy reference 

points that will prevent overfishing over 

the long term. The commenters are 

correct that NMFS omitted the SWFSC’s 

draft 2015 ATM estimate and the 2009– 

2014 MacCall/Thayer biomass 

estimates. NMFS did not use the 

SWFSC’s 2015 ATM estimate because 

that 2015 estimate was the SWFSC’s 

first attempt at an ATM estimate for 

central anchovy, and that estimate did 

not complete NMFS’ formal review 

process to be finalized. However, the 

SWFSC is currently reviewing a new 

2015 estimate, which may make it 

available for use in a potential future 

revision to central anchovy reference 

points if finalized. NMFS has stated in 

many previous instances that NMFS has 

determined that biomass estimates from 

the MacCall and Thayer publications do 

not constitute the best scientific 

information available for setting new 

central anchovy reference points. The 

commenters are also correct that NMFS 

does not have its own 2009–2014 

biomass estimates; NMFS stated this in 

the preamble to the proposed rule and 

this final rule. However, NMFS has 

enough information on the biology and 

historical population sizes of central 

anchovy to support its determination 

that the reference points in this rule can 

prevent overfishing. As NMFS has also 

repeatedly stated, the idea that the 

central anchovy population can go to 

very low levels and that its size can 

fluctuate are not new concepts: This 

type of biology is the reason the risk 

policy included in the ABC control rule 

for this stock and other similar stocks in 

the CPS FMP includes the 

unprecedented buffer that it has. 

Classification 

NMFS is issuing these regulations 

under Magnuson-Stevens Act 305(d), 16 

U.S.C. 1855(d), without a 

recommendation from the Council. The 

reason for using this regulatory 

authority is because this final 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. 

This final rule has been determined to 

not be significant for purposes of 

Executive Order 12866. 

This final rule is not an Executive 

Order 13771 regulatory action because 

this rule is not significant under 

Executive Order 12866. 

A final regulatory flexibility analysis 

(FRFA) was prepared pursuant to 5 

U.S.C. 604(a), and is included in this 

final rule. The FRFA incorporates the 

initial regulatory flexibility analysis 

(IRFA). NMFS did not receive any 

public comments on the IRFA or 

regulatory flexibility analysis (RFA) 

process. The FRFA describes the 

economic impact this final rule may 

have on small entities. The results of the 

analysis are stated below. A copy of this 

analysis is available from NMFS (see 

ADDRESSES). 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, a notification email 

to relevant stakeholders that also serves 

as small entity compliance guide (the 

guide) was prepared. Copies of this final 

rule are available from the West Coast 

Regional Office, and the guide, i.e., the 

notification letter, will be emailed to all 

stakeholders. 

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 rule is the establishment of 

a new OFL, ABC, and ACL for the 

central anchovy subpopulation. 

The small entities that would be 

affected by this action are primarily 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 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 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 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 final 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 action should not result in changes 

in current fishery operations. As a 

result, the ACL implemented in this rule 

is 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 


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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 86865 

not fully developed. 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. 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). 

During the proposed rule stage, NMFS 

proposed the option of implementing 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. A 

reduced ACL resulting from the this 

type of management measure would 

have 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. NMFS 

decided to not to implement this 

management measure because NMFS 

determined it was not necessary in 

order to prevent overfishing over the 

long term. Therefore, NMFS did not 

further analyze potential economic 

impacts from this type of management 

measure during the final rule stage. 

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 

final 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 final rule contains no 

information collection requirements 

under the Paperwork Reduction Act of 

1995. 

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

List of Subjects in 50 CFR Part 660 

Fisheries, Fishing, Indians, Recreation 

and recreation areas, Reporting and 

recordkeeping requirements, Treaties. 

Dated: December 23, 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 amended 

as follows: 

PART 660—FISHERIES OFF WEST 

COAST STATES 

■ 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. 

■ 2. In § 660.511, revise paragraph (k)(1) 

to read as follows: 

§ 660.511 Catch restrictions. 

* * * * * 

(k) * * * 

(1) Northern Anchovy (Central 

Subpopulation): 25,000 mt. 

* * * * * 

[FR Doc. 2020–28901 Filed 12–30–20; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 200221–0062; RTID 0648– 

XA759] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod in the 

Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; modification of 

closure. 

SUMMARY: NMFS is opening directed 

fishing for Pacific cod by various sectors 

in the Gulf of Alaska (GOA). This action 

is necessary to fully use the 2021 total 

allowable catch (TAC) of Pacific cod in 

the GOA. 

DATES: Effective 0001 hours, Alaska 

local time (A.l.t.), January 1, 2021 

through 2400 hours, A.l.t., December 31, 

2021. Comments must be received at the 

following address no later than 4:30 

p.m., A.l.t., January 15, 2021. 

ADDRESSES: You may submit comments, 

identified by NOAA–NMFS–2019–0102, 

by either of the following methods: 

• Federal e-Rulemaking Portal: Go to 

https://www.regulations.gov/ 

docket?D=NOAA-NMFS-2019-0102, 

click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit written comments to 

Glenn Merrill, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region NMFS, Attn: 

Records Office. Mail comments to P.O. 

Box 21668, Juneau, AK 99802–1668. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. 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), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

(Council) under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

Pursuant to the final 2020 and 2021 

harvest specifications for groundfish in 

the GOA (85 FR 13802, March 10, 2020), 

NMFS closed directed fishing for Pacific 

cod in the GOA in accordance with 

§ 679.20(d)(1)(iii) through December 31, 

2021. 

As of December 17, 2020, NMFS has 

determined that 5,590 metric tons (mt) 

in the Western Regulatory Area and 

10,242 mt in the Central Regulatory 

Area of the GOA of Pacific cod TAC is 

available in 2021. This is based on the 

Council’s December 2020 

recommendation for the 2021 Pacific 

cod TAC in the GOA. NMFS issued an 

inseason adjustment to adjust the 2021 

Pacific cod TAC to reflect the Council’s 

recommendations (85 FR 83834, 

December 23, 2020). The adjusted 2021 

Pacific cod TACs are sufficient to allow 

for directed fishing for Pacific cod by 

vessels using jig gear, vessels using pot 

gear, and catcher/processors (CPs) using 

hook-and-line gear in the Western 

Regulatory Area of the GOA. The 

adjusted 2021 Pacific cod TACs also are 


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