[Federal Register Volume 85, Number 251 (Thursday, December 31, 2020)]
[Rules and Regulations]
[Pages 86855-86865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28901]



[[Page 86855]]

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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.

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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\
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    \1\ 16 U.S.C. 1851(a)(1) and (2); see also, 50 CFR 600.310 and 
600.315.
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Background on CPS Management for Monitored Stocks

    Management unit stocks in the CPS FMP are classified under three 
management categories: Active, monitored, and prohibited harvest 
species. Stocks in the active category (Pacific sardine and Pacific 
mackerel) are managed under catch limits that are set periodically or 
annually based on regular stock assessments. Fisheries for these stocks 
have biologically significant levels of catch, or biological or 
socioeconomic considerations requiring this type of relatively intense 
harvest management procedure. In contrast, stocks in the monitored 
category (jack mackerel, northern anchovy, and market squid \2\) are 
managed under multi-year catch limits and annual quantitative or 
qualitative reviews of available abundance data without regular stock 
assessments or required annual adjustments to target harvest levels. 
This is in part due to the fact that fisheries for monitored stocks do 
not have biologically significant catch levels and, therefore, do not 
require intensive harvest management to ensure overfishing is 
prevented. Allowable catches for stocks in the monitored stock category 
are set well below maximum sustainable yield (MSY) levels to ensure 
overfishing does not occur. As a result, monitored stocks have been 
adequately managed by tracking landings and examining available 
abundance indices. In contrast, the 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.
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    \2\ Market squid is statutorily exempt from the general 
requirement to be managed using an ACL because of its short life-
cycle.
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    In September 2011, NMFS approved Amendment 13 to the CPS FMP, which 
modified the framework process used to set and adjust fishery 
specifications and for setting ACLs and accountability measures (AMs). 
Amendment 13 conformed the CPS FMP with the 2007 amendments to the 
Magnuson-Stevens Act and the Magnuson-Stevens Act National Standard 1 
guidelines at 50 CFR 600.310, which for the first time required ACLs be 
established for management unit species (with exceptions). 
Specifically, Amendment 13 maintained the existing reference points and 
the primary harvest control rules for the monitored stocks (jack 
mackerel, northern anchovy, and market squid), including the large 
uncertainty buffer built into the 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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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 
Magnuson-Stevens 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.
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    \3\ See 50 CFR 600.315(d).
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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.
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    \4\ The 2016 Rule only implemented an ACL for central anchovy. 
The OFL and ABC for central anchovy were implemented via Amendment 
13 to the CPS FMP in 2011 based on values established in Amendment 8 
to the CPS FMP in 2000. However, since the 2016 ACL was calculated 
based on the previously implemented OFL and ABC, the Court vacated 
all three reference points.
    \5\ Conrad, J.M. 1991. A Bioeconomic Model of the Northern 
Anchovy. Administrative Report LJ-91-26. La Jolla, CA: NMFS 
Southwest Fisheries Science Center.
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    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.
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    \7\ MacCall, A.D., W.J. Sydeman, P.C. Davison, and J.A. Thayer. 
2016. Recent collapse of northern anchovy biomass off California. 
Fisheries Research 175: 87-94.
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    The Court found, however, that the 2016 Rule for central anchovy, 
including the ACL it established, violated the Magnuson-Stevens Act and 
the 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

[[Page 86857]]

Service to fail to consider whether the OFL, ABC, and ACL still 
prevented overfishing in light of their direct reliance on a [maximum 
sustainable yield] estimate from a 1991 study that evidence in the 
administrative record indicated was out of date.'' On January 18, 2018, 
the Court granted Oceana's motion for summary judgment. On January 18, 
2019, the Court granted Oceana's motion to enforce the judgment and 
ordered NMFS to promulgate a new rule in compliance with the Magnuson-
Stevens Act and the APA by April 18, 2019.

The 2019 Rule and Oceana II

    As a result of the Court's decision in Oceana I, which vacated the 
2016 Rule, NMFS was charged with determining and implementing a new 
OFL, ABC and ACL unilaterally (i.e., outside of the Council process). 
In determining these new reference points, NMFS considered the District 
Court's opinion, which indicated that the vacated reference points were 
not reflective of recent biomass levels. This conclusion was despite 
the fact that the vacated 2016 reference points were set using long-
term information and thus were representative of the long-term 
population structure and variability of central anchovy. To address the 
Court's concern, NMFS examined ways to use recent abundance estimates 
in the 2019 Rule (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 E<INF>MSY</INF>.\8\ The three 
abundance estimates NMFS used were from NMFS' 2016 and 2018 acoustic-
trawl method (ATM) surveys, which were 151,558 mt and 723,826 mt 
respectively, and NMFS' 2017 daily egg production method (DEPM) survey, 
which was 308,173 mt. NMFS excluded from further consideration a fourth 
available abundance estimate, an ATM estimate for 2017, because the ATM 
survey in the summer of 2017 was focused on the northern portion of the 
U.S. West Coast as well as the west coast of Vancouver Island, British 
Columbia, Canada, and was not designed to sample the complete range of 
central anchovy. The principal objectives of that survey were to gather 
data on the northern stock of Pacific sardine and, to some extent, the 
NSNA, and therefore the survey chose not to sample south of Morro Bay, 
California, which is an area where central anchovy are typically found.
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    \8\ The calculation uses an E<INF>MSY</INF>, which is the 
exploitation rate for deterministic equilibrium MSY and although 
similar in context is slightly different than a calculation of 
F<INF>MSY</INF>.
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    The fishing mortality rate estimate was from an analysis that the 
Southwest Fisheries Science Center (SWFSC) completed in 2016 as part of 
an effort examining minimum stock size thresholds for CPS. For 
potentially deriving an E<INF>MSY</INF>, 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 F<INF>MSY</INF> based on eight alternative models. NMFS 
used the average of the four best fitting models from that work to 
calculate an E<INF>MSY</INF> of 0.239. This methodology resulted in an 
OFL of 94,290 mt, an ABC of 23,573 mt, and an ACL of 23,573 mt.
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    \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.
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    In determining whether to use the previously described abundance 
estimates to develop the reference points for the 2019 Rule, NMFS 
considered scientific reviews presented to the Council at its April 
2018 meeting,\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.
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    \10\ See Methodology Review Panel Report: Acoustic Trawl 
Methodology Review for use in Coastal Pelagic Species Stock 
Assessments. This report is available on the Pacific Fishery 
Management Council website at: https://www.pcouncil.org/documents/2018/04/agenda-item-c-3-attachment-2.pdf/.
     See Center for Independent Experts Independent Peer Review of 
the Acoustic Trawl Methodology (ATM). This report is available on 
the Pacific Fishery Management Council website at: https://www.pcouncil.org/documents/2018/04/agenda-item-c-3-supplemental-attachment-3.pdf/.
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    In determining whether the new reference points were based on the 
best scientific information available and that the best scientific 
information available supported that they would prevent overfishing, 
NMFS again considered the data in the MacCall publication, as well as 
other existing data sources, including a publication by Thayer et al. 
2017 \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\
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    \11\ Thayer, J.A., A.D. MacCall, and W.J. Sydeman. 2017. 
California anchovy population remains low, 2012-2015. CalCOFI Report 
Vol. 58.
    \12\ See New Marine Heatwave Emerges off West Coast, Resembles 
``the Blob'' Available at: https://www.fisheries.noaa.gov/feature-story/new-marine-heatwave-emerges-west-coast-resembles-blob.
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    After NMFS' second review and consideration of the MacCall 
publication and its results, NMFS found

[[Page 86858]]

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).
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    \13\ See Report of the NOAA Southwest Fisheries Science Center & 
Pacific Fishery Management Council Workshop on CPS Assessments (May 
2-5, 2016). This report is available on the Pacific Fisheries 
Management Council website, at https://www.pcouncil.org/documents/2016/09/e2a_workshop_rpt_sept2016bb.pdf/.
    \14\ See Egg and Larval Production of the Central Subpopulation 
of Northern Anchovy in the Southern California Bight (October 24, 
2016). This report is available on the Pacific Fisheries Management 
Council website at https://www.pcouncil.org/documents/2016/11/agenda-item-g-4-a-swfsc-report.pdf/.
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    In light of the Court's finding in Oceana II that, based on the 
record at the time, the MacCall and Thayer publications constituted the 
best scientific information available regarding recent anchovy 
abundance estimates and anchovy population fluctuations, NMFS re-
examined the conclusions of the previously discussed 2016 scientific 
reviews of those publications. Specifically, NMFS reviewed the results 
of the May 2016 workshop, which was focused on anchovy and the data 
available to assess the status of the population. This workshop 
included experts from around the world on coastal pelagic species and 
was held as a direct result of the MacCall publication, as well as 
other evidence at the time that anchovy abundance was likely low (e.g., 
Leising et al. 2015 \15\). The focus of the workshop was to review the 
available information on the abundance of

[[Page 86859]]

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:
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    \15\ Leisling, A.W. et al. State of the California Current 2013-
14: El Nino Looming. CalCOFI Report Vol. 55.
    \16\ See Scientific and Statistical Committee Report on Northern 
Anchovy Stock Assessment and Management Measures. This document is 
available on the Pacific Fishery Management Council website at: 
https://www.pcouncil.org/documents/2016/11/agenda-item-g-4-a-supplemental-ssc-report.pdf/.

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

    After this review, NMFS remains confident that those scientific 
reviews from 2016 were thorough and unbiased and finds no reason to 
disagree with their logic or conclusions.
    Although the previously-discussed technical rationale is sound in 
concluding that neither the MacCall publication nor the Thayer 
publication using the same methods is the best scientific information 
available, NMFS acknowledges that those publications contain the only 
explicit biomass estimates from 2009-2014. NMFS also acknowledges that 
those publications show that the stock during that time decreased to a 
very low level and that the ``drastic anchovy population fluctuations'' 
contained in the publications ``are only (emphasis added) documented by 
MacCall (2016) and Thayer et al. (2017).'' NMFS notes that it has never 
disputed whether the anchovy population was relatively low during the 
2009-2014 time period, at least in the core CalCOFI region; rather, 
NMFS disputes whether the population was as low as the flawed MacCall 
and Thayer estimates suggest and whether the adult population was as 
high as reported in the year preceding the purported decline. The 
methodological concerns with the MacCall and Thayer publications, 
combined with the additional uncertainty added by instances of combined 
fishery catches and predator consumption estimates (Warzybok et al. 
2018) \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.
---------------------------------------------------------------------------

    \17\ Warzybok P., J.A. Santora, D.G. Ainley, R.W. Bradley, J.C. 
Field, P.J. Capitolo, R.D. Carle et al. 2018. Prey switching and 
consumption by seabirds in the central California Current upwelling 
ecosystem: Implications for forage fish management. Journal of 
Marine Systems 185: 25-39.
---------------------------------------------------------------------------

    The authors of the MacCall and Thayer publications themselves 
cautioned against using their annual estimates as independent measures, 
stating, ``. . . . therefore estimates for recent single years are 
imprecise and should not be used individually for interpretation.'' 
Because of this, the Thayer publication suggests looking at the average 
of the last 4 years (2012-2015) provided in that publication, which is 
24,300 mt, as evidence of the extremely low level of the stock. In 
2018, however, as a result of newer data, the authors of the Thayer 
publication revised their estimated biomass for 2015,\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.
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    \18\ See Updated Biomass Estimates of CSNA. This document is 
available on the Pacific Fishery Management Council website at: 
https://pfmc.psmfc.org/CommentReview/DownloadFile?p=e982e162-4ec2-4b3b-8f1a-1da42a0bb81e.pdf&fileName=FI%20Letter%20to%20PFMC%20for%20Nov%202018%2C%20CSNA%20biomass%20update.pdf.
---------------------------------------------------------------------------

    During the preparation of 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

[[Page 86860]]

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\
---------------------------------------------------------------------------

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

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 E<INF>MSY</INF>.\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.

[[Page 86861]]

For potentially deriving an E<INF>MSY</INF>, 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).\21\ This analysis produced 
estimates of F<INF>MSY</INF> based on eight alternative models. NMFS 
used the average of the four best fitting models from that work to 
calculate an E<INF>MSY</INF> of 0.239. More information on the 
selection of this data and the calculations is provided in the preamble 
to the proposed rule.
---------------------------------------------------------------------------

    \20\ The calculation uses an E<INF>MSY</INF>, which is the 
exploitation rate for deterministic equilibrium MSY and although 
similar in context is slightly different than a calculation of 
F<INF>MSY</INF>.
    \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.
---------------------------------------------------------------------------

    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

[[Page 86862]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 Magnuson-Stevens 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.

[[Page 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 long-term averages; however, based on 
the long-term average biomass estimate from the Thayer publication, the 
biomass only dropped below that long-term 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

[[Page 86864]]

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

[[Page 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

0
1. The authority citation for part 660 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 
U.S.C. 7001 et seq.


0
2. In Sec.  660.511, revise paragraph (k)(1) to read as follows:


Sec.  660.511  Catch restrictions.

* * * * *
    (k) * * *
    (1) Northern Anchovy (Central Subpopulation): 25,000 mt.
* * * * *
[FR Doc. 2020-28901 Filed 12-30-20; 8:45 am]
BILLING CODE 3510-22-P