93522 Federal Register / Vol. 89, No. 229 / Wednesday, November 27, 2024 / Rules and Regulations 

§ 412.103 Obligations of care provider 

facilities. 

(a) General requirements. During any 

investigation by ORR, a care provider 

facility must: 

(1) Permit ORR unrestricted access to 

the premises, any physical property on 

the premises, buildings, staff, and 

children in the physical custody of the 

care provider facility; 

(2) Permit ORR to conduct interviews 

with children residing at the care 

provider facility, and without care 

provider facility staff, contractors, or 

sub-grantees of the care provider 

facility, or care provider facility 

volunteers present; 

(3) Permit ORR to observe the 

activities of care provider facility staff, 

contractors, or sub-grantees of the care 

provider facility, care provider facility 

volunteers, or other individuals who 

have access to children in ORR care 

through contracts or grants with ORR; 

(4) Promptly preserve any potential 

video or documentary evidence; 

(5) Promptly provide access to and, 

upon request, copies of all files, records, 

reports, data, video recordings, and 

other information to ORR, either prior to 

or during the investigation; 

(6) Promptly provide access to and 

contact information for care provider 

facility staff, contractors, or sub-grantees 

of the care provider facility, care 

provider facility volunteers, or other 

individuals who have access to children 

in ORR care through other contracts or 

grants with ORR; 

(7) Submit complete and accurate 

responses to any written questions in a 

timely manner; 

(8) Fully cooperate with ORR; 

(9) Fully cooperate with any 

investigation of the same allegation by 

State, local, and Federal authorities and 

relevant law enforcement agencies. 

(b) Protection against retaliation. Care 

provider facility staff, contractors, or 

sub-grantees of the care provider 

facility, and care provider facility 

volunteers must not retaliate against any 

person who in good faith reports or 

participates in an investigation of child 

abuse or neglect. 

(c) Obstruction, interference, delay of, 

or failure to permit an investigation. 

Obstruction, interference, delay of, or 

failure of a care provider facility to 

permit or cooperate with any 

investigation under this part, including 

failure to protect unaccompanied 

children from retaliation pursuant to 

§ 412.103(b), may result in ORR taking 

monitoring and enforcement measures 

including, but not limited to: remote 

monitoring of the care provider facility; 

on-site monitoring of the care provider 

facility; monitoring of the corporate 

offices to review internal policies and 

reporting structures, as well as 

supervisory response to events; limiting 

or stopping new placements of 

unaccompanied children at the care 

provider facility; removing all 

unaccompanied children from the care 

provider facility and placing them into 

other care provider facilities; issuing 

corrective actions; terminating the 

cooperative agreement or contract with 

the care provider facility; or imposing 

other such remedies for noncompliance 

applicable to HHS grant recipients and 

contractors. 

(d) Rights to legal representation, 

familial supports, and other supports. 

During the course of an investigation, 

care provider facilities must provide 

unaccompanied children confidential 

access to attorneys of record and other 

legal service providers, in a manner 

consistent with requirements 

established at 45 CFR 411.55 (as 

applicable) and 45 CFR 410.1309. Care 

provider facilities must provide 

unaccompanied children access to their 

families, including legal guardians, in a 

manner consistent with requirements 

established at 45 CFR 411.55 (as 

applicable) and 45 CFR 410.1309. Care 

provider facilities must provide 

unaccompanied children with access to 

their child advocates, in a manner 

consistent with the requirements at 8 

U.S.C. 1232(c)(6) and 45 CFR 410.1308. 

Care provider facilities must also 

provide unaccompanied children access 

to health services (including specialists 

and mental health practitioners), 

individual counseling sessions, and 

crisis intervention (including access to 

outside victim services and rape crisis 

centers where appropriate) to most 

appropriately address unaccompanied 

children’s needs, in a manner consistent 

with requirements established at 45 CFR 

410.1307, 45 CFR 410.1311, 45 CFR 

410.1302(c)(5), and 45 CFR 411.21 (as 

applicable). 

[FR Doc. 2024–27626 Filed 11–25–24; 8:45 am] 

BILLING CODE 4184–45–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 241120–0297] 

RTID 0648–XD848 

Fisheries Off West Coast States; 

Coastal Pelagic Species Fisheries; 

Annual Specifications; 2024–2025 

Annual Specifications and 

Management Measures for Pacific 

Sardine 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is implementing 

annual harvest specifications and 

management measures for the northern 

subpopulation of Pacific sardine 

(hereafter, Pacific sardine), for the 

fishing year from July 1, 2024, through 

June 30, 2025. This rule prohibits most 

directed commercial fishing for Pacific 

sardine off the coasts of Washington, 

Oregon, and California. Pacific sardine 

harvest is allowed only for use as live 

bait, in minor directed fisheries, as 

incidental catch in other fisheries, or as 

authorized under exempted fishing 

permits. The incidental harvest of 

Pacific sardine will be limited to 30 

percent by weight of all fish per trip 

when caught with other stocks managed 

under the Coastal Pelagic Species (CPS) 

Fishery Management Plan (FMP), or up 

to 2 metric tons (mt) per trip when 

caught with non-coastal pelagic species 

stocks. The harvest specifications for 

2024–2025 include an overfishing limit 

(OFL) of 8,312 mt, an acceptable 

biological catch (ABC) and annual catch 

limit (ACL) of 6,005 mt, and an annual 

catch target (ACT) of 5,500 mt. This 

final rule is intended to conserve, 

manage, and rebuild the Pacific sardine 

stock off the coasts of Washington, 

Oregon, and California. 

DATES: Effective December 27, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Katie Davis, West Coast Region, NMFS, 

(323) 372–2126, Katie.Davis@noaa.gov. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the Pacific sardine fishery in 

the U.S. exclusive economic zone (EEZ) 

off the Pacific coast (i.e., off the U.S. 

West Coast states of California, Oregon, 

and Washington) in accordance with the 

CPS FMP. The CPS FMP and its 

implementing regulations require NMFS 

to set annual reference points and 

management measures for the Pacific 


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Federal Register / Vol. 89, No. 229 / Wednesday, November 27, 2024 / Rules and Regulations 93523 

sardine fishery based on the annual 

specification framework and control 

rules in the FMP. These control rules 

include the harvest guideline (HG) 

control rule, which, in conjunction with 

the OFL and ABC control rules in the 

FMP, are used to set required reference 

points, in accordance with the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA) (16 U.S.C. 1801 et seq.). 

Additionally, the CPS FMP requires 

additional management measures, 

intended to restrict harvest, for the 

Pacific sardine fishery, such as catch 

restrictions. 

NMFS publishes annual 

specifications in the Federal Register to 

establish these annual reference points 

(e.g., the OFL, ABC, and ACL) and 

management measures for each Pacific 

sardine fishing year. NMFS published 

proposed specifications and 

management measures on June 21, 2024 

(89 FR 52005). Additionally, in response 

to a court order, and to avoid a lapse in 

regulations, NMFS published an interim 

final rule (89 FR 62668; August 1, 2024) 

that was effective July 29, 2024, and is 

in place until replaced by these 2024– 

2025 final specifications. 

Final Reference Points and 

Management Measures 

Based on the 2024 benchmark stock 

assessment for Pacific sardine, the 

associated estimated age 1+ biomass of 

58,614 mt, the control rule formulas in 

the FMP, and recent related Court 

orders, NMFS is implementing, as 

proposed, an OFL of 8,312 mt, an ABC 

of 6,005 mt, an ACL of 6,005 mt, and an 

ACT of 5,500 mt. 

The CPS FMP includes a prohibition 

of the primary directed fishery when the 

biomass is at or below 150,000 mt. The 

Pacific sardine primary directed fishery 

is therefore closed, and Pacific sardine 

catch during the 2024–2025 fishing 

season is prohibited unless it is 

harvested as part of the live bait, tribal, 

or minor directed fisheries, as incidental 

catch in other fisheries, or as part of 

exempted fishing permit (EFP) 

activities. 

The 2024–2025 fishing year 

specifications can be found in table 1, 

and management measures are listed 

after table 1. 

TABLE 1—HARVEST SPECIFICATIONS FOR THE 2024–2025 SARDINE FISHING YEAR, IN METRIC TONS

[mt] 

Biomass estimate OFL ABC HG ACL ACT 

58,614 .................................................................................. 8,312 6,005 0 6,005 5,500 

The following are the additional 

management measures and in-season 

accountability measures for the 2024– 

2025 Pacific sardine fishing year: 

(1) If landings in the live bait fishery 

reach 3,000 mt of Pacific sardine, then 

a per-trip limit of 1 mt of Pacific sardine 

applies to the live bait fishery; 

(2) An incidental per-landing limit of 

30 percent (by weight) of Pacific sardine 

applies to other CPS primary directed 

fisheries (e.g., Pacific mackerel); 

(3) If the ACT of 5,500 mt is attained, 

then a per-trip limit of 1 mt of Pacific 

sardine applies to all CPS fisheries (i.e., 

(1) and (2) will no longer apply); and 

(4) An incidental per-landing 

allowance of 2 mt of Pacific sardine 

applies to non-CPS fisheries until the 

ACL is reached. 

In addition to the management 

measures and in-season accountability 

measures listed in the previous 

paragraphs, Pacific sardine catch in the 

minor directed fishery for finfish 

remains limited to 1 mt per trip per day, 

and 1 trip per day by any vessel, per 

regulations at 50 CFR 660.511(d)(2). 

Background 

At the April 2024 Pacific Fisheries 

Management Council (Council) meeting, 

the Council’s Scientific and Statistical 

Committee (SSC) reviewed a Stock 

Assessment Review (STAR) panel report 

on the Southwest Fisheries Science 

Center’s 2024 benchmark stock 

assessment, and also reviewed the 

benchmark stock assessment itself, 

titled ‘‘Assessment of the Pacific sardine 

resource (Sardinops sagax) in 2024 for 

U.S. management in 2024–2025.’’ The 

SSC concluded that the 2024 benchmark 

assessment for Pacific sardine is the best 

scientific information available for the 

management of Pacific sardine. During 

their review, the SSC noted major 

improvements in methodology from the 

2020 benchmark assessment, including 

an updated habitat model for assigning 

fishery catch and survey biomass to the 

northern and southern subpopulations 

of Pacific sardine. However, the SSC 

applied a category 2d sigma uncertainty 

buffer which, compared to a category 1, 

equates to a larger allowance for 

scientific uncertainty, and therefore a 

lower ABC and a decreased risk of 

overfishing. During the discussion of the 

appropriate category, the SSC discussed 

potential uncertainty in the relationship 

between sardine productivity and ocean 

temperatures recently used to calculate 

the EMSY parameter of the OFL and ABC 

control rules, as well as uncertainty in 

the strength of the 2023 year-class 

represented in the stock assessment, 

along with other uncertainties in the 

data used in the assessment. 

The CPS FMP control rules, as they 

apply to annual reference points, use 

the following formulas: 

OFL = Biomass * EMSY * 

DISTRIBUTION 

ABC = Biomass * BUFFER * EMSY * 

DISTRIBUTION 

Biomass. The estimated stock biomass 

of Pacific sardine ages 1 and older, in 

metric tons. 

EMSY. The exploitation rate for 

deterministic equilibrium maximum 

sustainable yield. Since 2014, based on 

annual recommendations by the Pacific 

Fishery Management Council’s SSC, the 

EMSY for Pacific sardine has most 

recently been based on a temperaturerecruitment relationship based on a 

running 3-year average of the California 

Cooperative Oceanic Fisheries 

Investigations (CalCOFI) temperature 

index. 

DISTRIBUTION. The average portion 

of the Pacific sardine biomass estimated 

to be in the U.S. EEZ off the Pacific 

coast. DISTRIBUTION is currently 

defined in the CPS FMP as 87 percent 

and is based on the average historical 

larval distribution obtained from 

scientific cruises and the distribution of 

the resource according to the logbooks 

of aerial fish-spotters. 

BUFFER. The percentage reduction of 

the OFL as determined by the SSC’s 

evaluation of scientific uncertainty 

(sigma) and the Council’s risk policy 

(P*). 

Rebuilding Plan and Oceana, Inc., v. 

Raimondo, et al. 

During the 2019–2020 fishing year, 

the estimated biomass of sardine 

dropped below its minimum stock size 

threshold of 50,000 mt, which triggered 

an overfished determination process. 

NMFS accordingly declared the stock 

overfished on June 26, 2019 and notified 

the Council on July 9, 2019. NMFS 

worked with the Council to develop a 

rebuilding plan for Pacific sardine to 


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93524 Federal Register / Vol. 89, No. 229 / Wednesday, November 27, 2024 / Rules and Regulations 

1Hurtado-Ferro, F., and Punt, A.E. 2013. Revised 

analyses related to Pacific sardine harvest 

parameters. PFMC June 2013 Briefing Book. Agenda 

Item I.4.b Attachment 1. 

implement within two years and 

finalized it on June 24, 2021 (86 FR 

33142). The rebuilding plan maintained 

the status quo management for Pacific 

sardine, which includes a complete 

closure of the primary sardine fishery. 

Oceana, an environmental nongovernmental organization, challenged 

this rebuilding plan and later included 

a challenge to the 2023–2024 annual 

specifications (‘‘2023 Final Rule’’; 88 FR 

41040), in an action filed in the United 

States District Court for the Northern 

District of California: Oceana, Inc., v. 

Raimondo, et al., No. 5:21–cv–05407– 

VKD (N.D. Cal., filed July 14, 2021). In 

its rulings on the challenges, the Court 

partially vacated the rebuilding plan 

and held that NMFS failed to 

demonstrate that it relied on best 

available science to set the overfishing 

limits in using the CalCOFI temperature 

index to determine EMSY for the 2023 

Final Rule. 

Partially-Vacated Rebuilding Plan 

The Court partially vacated the 

rebuilding plan on June 28, 2024. 

Accordingly, NMFS cannot rely on the 

vacated components of the rebuilding 

plan to guide these annual 

specifications. The harvest control rules 

in place before Amendment 18 to the 

CPS FMP implemented the now 

partially-vacated rebuilding plan are 

still applicable. None of the provisions 

of Amendment 18, whether vacated or 

not, changed the previously applicable 

harvest control rules. 

EMSY

NMFS considered the recent order 

from the Court in making a 

determination that the harvest 

specifications and management 

measures in this action would prevent 

overfishing, rebuild the stock, and are 

supported by the best scientific 

information available. As they have in 

previous years, the SSC recommended 

an OFL and ABC for the 2024–2025 

fishing year that were calculated, in 

part, by using an EMSY based on a 

relationship with CalCOFI temperatures 

as best scientific information available 

for preventing overfishing. The CPS 

FMP does not mandate that EMSY be 

based on this relationship. Under the 

MSA, the SSC provides scientific advice 

for NMFS’ consideration in fishery 

management decisions, including ABC 

and preventing overfishing. Per National 

Standard 2 at 50 CFR 600.315(a)(2), 

scientific information that is used to 

inform decision making should include 

an evaluation of its uncertainty and 

management decisions should recognize 

the risks, such as those to overfishing, 

associated with the sources of 

uncertainty. The SSC discussed the 

potential uncertainty surrounding the 

use of the CalCOFI-based EMSY when 

considering their choice of the 

appropriate sigma for the ABC. NMFS 

has determined that the use of a 

Category 2 sigma, as recommended by 

the SSC, appropriately accounts for any 

scientific uncertainty and gaps in 

scientific information that may exist, 

including any surrounding EMSY, in the 

information used to calculate the 

recommended reference points. 

In making the determination to 

approve the OFL and ABC 

recommended by the Council, NMFS 

took into account the fact that the SSC 

recommended that the analysis and 

assumptions surrounding a CalCOFI 

based EMSY be revisited. This was one 

of several scientific recommendations 

made by the SSC in April 2024. Other 

recommendations included a potential 

reconsideration of the need for the 

precaution provided by the 

DISTRIBUTION term, noting that a 

substantial proportion of the U.S. catch 

in recent years is inferred to be from the 

southern subpopulation of Pacific 

sardine and that there has been a 

decline in the assumed catch of 

northern subpopulation by Mexico, as 

well as endorsement of the eight highpriority research recommendations for 

future sardine stock assessments in the 

2024 sardine STAR panel report. All of 

these recommendations are typical of 

the scientific process to inform fishery 

management decisions such as 

determining an appropriate OFL and 

ABC to prevent overfishing and achieve 

optimum yield in the fishery. 

NMFS also examined recent and past 

years’ CalCOFI temperatures in relation 

to this year’s calculated CalCOFI-based 

EMSY. The calculated value for this year 

is 0.163 and represents the lowest EMSY

in 10 years, and falls in the lower range 

of expected values. The decline in EMSY

this year compared to the last 3 years is 

the result of a high temperature record 

year in 2020 falling out of the running 

3-year average temperature used to 

calculate EMSY. This effect was also 

observed between 2014 and 2017 when 

a very large marine heatwave off the 

Pacific coast caused unprecedented 

disruptions in the ocean environment, 

resulting in high CalCOFI temperatures. 

The highest CalCOFI temperature in 40 

years was recorded in 2015. Such events 

increase the running 3-year average 

temperature used to calculate EMSY. To 

reduce the risk of potentially excessive 

EMSY values, the SSC recommended in 

2014 that a CalCOFI-based EMSY be 

restricted to a maximum of 0.25 (for 

reference, this equated to a temperature 

of 16.16 °C when the median 

temperature was 15.90 °C). This cap on 

EMSY was applied to calculations of the 

reference points for the 2016–2017 and 

2018–2019 fishing years. 

Although the Court found that NMFS’ 

rationale for exclusively using CalCOFI 

data to determine EMSY in order to set 

the 2023–2024 specifications was 

inadequate, it explicitly declined to 

prohibit NMFS from employing the 

CalCOFI-based EMSY in setting catch 

limits, and stated that the agency must 

reassess the rebuilding plan and 

determine how to meet the requirements 

of the MSA in view of the Court’s order. 

In light of the Court’s finding prior to 

the issuance of the 2024–2025 harvest 

specifications, and as part of a robust 

decision-making process, NMFS 

considered whether there was 

alternative scientific information, per 50 

CFR 600.315(a)(2), that would warrant 

disapproving the Council’s 

recommendation. 

Although EMSY is lower this year than 

any EMSY used in the last 10 years, 

NMFS acknowledges there is still 

scientific uncertainty surrounding the 

predictive efficacy of the CalCOFI 

temperature index. However, as 

explained in both the proposed rule and 

this final rule, this uncertainty was 

considered by the SSC and the Council 

when recommending a 2,307 mt 

reduction from the OFL to the ABC (i.e., 

OFL is 8,312 mt but ABC and ACL are 

both 6,005 mt). Importantly, as 

discussed in the proposed rule and in 

the paragraphs that follow, in addition 

to accounting for any scientific 

uncertainty surrounding CalCOFI, 

NMFS also considered the only 

available alternative to its use, which 

resulted in a higher value than the 

CalCOFI-based EMSY, and determined 

the lower value was appropriate to use 

in setting this year’s specifications. 

Currently, there are no other 

formulaic relationships between Pacific 

sardine recruitment and an 

environmental variable on which to 

base EMSY. However, past analyses have 

calculated a stochastic (referenced as 

‘‘static’’ in proposed rule) EMSY of 0.18 

when the effects of temperature on 

productivity are ignored.1 This value for 

EMSY was recommended by the SSC and 

utilized by NMFS as best scientific 

information available for management 

in 2012–2014 as an alternative to the 

default option of applying the 

temperature-stock relationship due to 

uncertainty surrounding the 


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Federal Register / Vol. 89, No. 229 / Wednesday, November 27, 2024 / Rules and Regulations 93525 

2Prior to 2012, EMSY was based on a relationship 

with sea surface temperature measured at the 

Scripps Institution of Oceanography (SIO) pier, in 

La Jolla, CA. A scientific paper was published 

calling into question this relationship, so while that 

was reviewed, 18 percent was used for EMSY. The 

subsequent review of the SIO pier temperature and 

EMSY relationship determined it was actually still 

correlated. 

3Scientific and Statistical Committee Minutes. 

April 2023. PFMC. https://www.pcouncil.org/ 

documents/2023/06/scientific-and-statisticalcommittee-draft-april-1-2-2023-minutes.pdf/. 

4Pikitch, E. et al. 2012. Little Fish, Big Impact: 

Managing a Crucial Link in Ocean Food Webs. 

Lenfest Ocean Program. Washington, DC. 108 pp. 

relationship at that time.2 During the 

Council’s April 2023 Pacific sardine 

harvest specification process, the SSC 

specifically compared this stochastic 

value to the CalCOFI-based 2023–2024 

EMSY of 0.22 in its discussion of an 

appropriate OFL buffer: ‘‘There was no 

support among SSC members for a 

category 1 designation, but there was 

some discussion of the merits of a 

category 2 versus a category 3 

assessment. Although uncertainty in 

EMSY would argue for increased 

uncertainty in the OFL, it was noted 

that the ‘nondynamic’ harvest rate 

(estimated to maximize long-term yield 

in stochastic simulations), of 0.18, is not 

very different from 0.22 based on 

current SSTs, and that other CPS stocks 

have rates that are higher still (Pacific 

mackerel EMSY is ∼0.3).’’ 3

NMFS considers this modeled 

stochastic EMSY of 0.18 as the only 

available alternative that could have 

been considered in making OFL 

determinations for Pacific sardine 

without the use of the CalCOFI 

temperature index. However, the 

Council’s SSC recommended to the 

Council an OFL that utilized the 

CalCOFI-based EMSY as the best 

scientific information available. In 

making the decision to approve the OFL 

and ABC in this action, NMFS 

considered the stochastic EMSY of 0.18. 

NMFS concluded that, at this time, it 

cannot make a determination that the 

stochastic EMSY of 0.18 represents a 

better alternative to the CalCOFI-based 

EMSY value the SSC recommended as 

the best scientific information available 

for determining this year’s OFL. Since 

2000, when the CPS FMP was adopted 

and harvest control rules were 

established for Pacific sardine, it has 

been determined that making efforts to 

include environmental information into 

the management of Pacific sardine is the 

preferred approach. And although the 

relatively recent running 3-year average 

CalCOFI temperatures have resulted in 

higher values than in previous years, 

likely as a result of anomalous, although 

becoming more frequent, oceanographic 

events, that may appear to contradict 

the original concept of the 

environmental EMSY, this year’s 

temperature and resulting EMSY align 

with the concept as they are both in the 

lower range of values during a time of 

relatively low sardine recruitment. 

NMFS will continue, as it has each year, 

to evaluate whether the use of the 

CalCOFI-based EMSY is the best 

scientific information available for 

future annual specifications. 

As noted in the proposed rule, the 

Council’s recommended OFL, 

calculated using an EMSY of 0.163, is a 

lower OFL and therefore more 

precautionary than an OFL would have 

been based on the stochastic EMSY of 

0.18. Additionally, it has been 

previously suggested that one approach 

to set a precautionary proxy fishing 

mortality rate for small pelagic fish such 

as Pacific sardine is to use a value that 

equates to one half of the species natural 

mortality rate.4 Based on the estimates 

of natural mortality from the 2024 

Pacific sardine stock assessment, this 

formula would produce an EMSY in the 

range of 0.25–0.30. By contrast, the EMSY

utilized to calculate the OFL 

implemented through this action is only 

0.163. For these reasons, NMFS has 

determined that the reference points 

recommended by the Council are based 

on the best scientific information 

available and, therefore, NMFS has 

determined to implement them through 

this action. 

Annual Catch Limit 

Although this action implements an 

ACL equal to the ABC at 6,005 mt, as 

envisioned by the FMP, NMFS has 

determined that as a result of the 

closure of the directed fishery and 

additional management measures, 

landings of the northern subpopulation 

of Pacific sardine will remain very low 

and total U.S. sardine landings are 

highly unlikely to exceed 2,200 mt, 

similar to what has occurred since the 

2015–2016 fishing year, when the 

directed fishery was closed (see table 2). 

TABLE 2—LANDINGS ATTRIBUTED IN THE 2024 PACIFIC SARDINE STOCK ASSESSMENT TO NORTHERN AND SOUTHERN

SUBPOPULATIONS OF PACIFIC SARDINE (2014–2023), IN METRIC TONS

Fishing year ACL 

Total landings of 

Pacific sardine 

(combined catch of 

northern and 

southern 

subpopulations) 

Assumed landings of 

northern subpopulation 

of Pacific sardine 

2014–2015 ................................................................................................. 23,293 23,113 19,969 

2015–2016 ................................................................................................. 7,000 1,919 75 

2016–2017 ................................................................................................. 8,000 1,885 602 

2017–2018 ................................................................................................. 8,000 1,775 351 

2018–2019 ................................................................................................. 7,000 2,278 525 

2019–2020 ................................................................................................. 4,000 2,062 627 

2020–2021 ................................................................................................. 4,000 2,276 657 

2021–2022 ................................................................................................. 3,000 1,772 298 

2022–2023 ................................................................................................. 3,800 1,619 517 

All sources of catch, including any 

EFP set-asides, the live bait fishery, and 

other minimal sources of harvest, such 

as incidental catch in CPS and non-CPS 

fisheries and minor directed fishing, 

will be accounted for against the ACT 

and ACL. Any Pacific sardine harvested 

between July 1, 2024, and the effective 

date of this final rule will count toward 

the 2024–2025 ACT and ACL. 

At the April 2024 Council meeting, 

the Council recommended apportioning 

670 mt of the ACL for two EFP 

proposals to support stock assessments 

for Pacific sardine. NMFS published a 

notice of receipt of EFP applications on 

June 26, 2024 (89 FR 53396). The 

comment period closed on July 26, 


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93526 Federal Register / Vol. 89, No. 229 / Wednesday, November 27, 2024 / Rules and Regulations 

5Zwolinski, JP & Demer, DA. 2019. Re-evaluation 

of the environmental dependence of Pacific sardine 

recruitment. Fisheries Research, 216, 120–125. 

https://doi.org/10.1016/j.fishres.2019.03.022. 

2024, and NMFS received no comments. 

NMFS is deciding whether to issue the 

EFPs during the promulgation of this 

final rule. The NMFS West Coast 

Regional Administrator will publish a 

notice in the Federal Register to 

announce when catch reaches the 

incidental limits, as well as any changes 

to allowable incidental catch 

percentages or trip limits. Additionally, 

to ensure that the regulated community 

is informed of any closure, NMFS will 

make announcements through other 

means available, including emails to 

fishermen, processors, and state fishery 

management agencies. 

Comments and Responses 

On June 21, 2024, NMFS published a 

proposed rule for this action and 

solicited public comments through July 

8, 2024 (89 FR 52005). NMFS received 

two public comment letters relevant to 

this action, one from the California 

Wetfish Producer’s Association (CWPA) 

and one from the non-governmental 

conservation organization Oceana. After 

considering the public comments, 

NMFS made no changes from the 

proposed rule. The comment from 

CWPA supported this action. The 

comment letter from Oceana included 

multiple comments, some of which are 

beyond the scope of this action. 

Additionally, some of the comments 

and requests provided by Oceana were 

the subject of recent litigation. The U.S. 

District Court (N.D. Cal.) has ruled in 

this case, and NMFS notes that it must 

complete the remand of the Pacific 

sardine rebuilding plan by June 1, 2025 

(Oceana, Inc., v. Raimondo, et al.). 

NMFS summarizes and responds to 

those comments from Oceana below. 

Comment 1: Oceana states that the 

EMSY used to set the OFL, ABC, and 

ACL fails to prevent overfishing and is 

inconsistent with the best available 

science on sardine productivity. Oceana 

states that in NMFS’ rationale for 

continuing to use the CalCOFI index for 

EMSY, NMFS incorrectly asserts that the 

identified flaws in the CalCOFI index 

are due to uncertainty. 

Response: NMFS has determined that 

the OFL and ABC implemented through 

this action will prevent overfishing and 

are supported by the best scientific 

information available. NMFS notes that 

this issue was the subject of recent court 

orders: on April 22, 2024, the Court 

issued an order stating that NMFS failed 

to demonstrate that it had relied on the 

best available science in setting the 

2023–2024 OFL for Pacific sardine using 

an exclusively CalCOFI-derived EMSY. 

As stated in this rule, NMFS took into 

account the Court’s finding on this 

matter and has determined that 

reference points established by this 

action, specifically the OFL and ABC, 

will prevent overfishing, support the 

rebuilding of the stock, and are 

supported by the best scientific 

information available. In an attempt to 

address the Court’s concern for these 

2024–2025 harvest specifications, 

NMFS expressly considered what 

available information exists that would 

necessitate that NMFS disapprove the 

Council’s recommended OFL. As stated 

above, NMFS considered the only 

alternative EMSY value previously 

analyzed and used by the Council’s SSC 

and NMFS, which was 18 percent. The 

use of the 18 percent EMSY was 

previously supported by analyses 

conducted by Hurtado-Ferro and Punt 

(2013) developed to evaluate the 

performance of alternative candidate 

OFL and HG control rule variants. That 

analysis used a Pacific sardine specific 

model to calculate an EMSY to examine 

constant exploitation rate harvest 

control rules (i.e., an EMSY that does not 

account for an environmental effect), 

and is also the EMSY value that was used 

to project the population in the 

rebuilding analysis for Pacific sardine. 

For this year, the alternative of an 18 

percent EMSY would be higher than the 

CalCOFI-based EMSY value, and would 

therefore result in a higher OFL than the 

OFL recommended by the SSC. As 

described in this rule, the CalCOFIbased EMSY is among the lowest values 

produced by the CalCOFI (sea surface) 

temperature index in the past 10 years. 

The literature cited by the commenter 

(Zwolinski and Demer, 2019) reevaluated the correlation between the 

sea surface temperature EMSY values and 

recruitment success of the northern 

subpopulation of Pacific sardine over a 

specific period of years and suggested 

that the relationship was no longer 

statistically valid. However, the same 

journal article that called into question 

the validity of the CalCOFI temperature 

index in predicting the productivity of 

Pacific sardine stated that ‘‘. . . even a 

marginally statistically significant 

environment-dependent recruitment 

model may be useful. For example, if 

required by the HCR, it could be used 

to predict recruitment in the 

management year and forecast the stock 

biomass into the following year more 

precisely than a model without 

environmental influence.’’ 5 While 

NMFS will continue to evaluate EMSY, it 

has determined that use of the CalCOFI 

temperature index is the best scientific 

information available in setting the 

2024–2025 Pacific sardine harvest 

specifications. 

Comment 2: Oceana argues that the 

stochastic EMSY value of 18 percent is 

outdated and incorrect and that NMFS 

fails to analyze other available 

alternatives for setting the EMSY value 

for the 2024–2025 specifications. 

Oceana suggests using an EMSY value of 

5 percent from Alternative 3 in 

Amendment 18 to the CPS FMP to set 

the OFL. Oceana states that NMFS could 

alternatively also readily produce an 

EMSY from the 2024 stock assessment, as 

it did in the 2022 northern anchovy 

stock assessment, and use it to calculate 

the 2024–2025 annual catch 

specifications. 

Response: As stated previously in this 

rule, in light of the Court’s finding that 

NMFS’ rationale for using the CalCOFI 

based EMSY in the 2023–2024 

specifications was inadequate, NMFS 

re-examined and reviewed the relevant 

information available to make a 

determination on approving the OFL 

and ABC implemented through this 

action. While Oceana states that the 

CalCOFI-based EMSY and the stochastic 

18 percent EMSY are not consistent with 

the best scientific information available 

on sardine productivity, the comment 

did not offer alternative best scientific 

information available and NMFS has 

determined that none exists. Oceana 

suggests that NMFS consider a 5 percent 

EMSY; however, NMFS could not, 

through this action, implement an OFL 

utilizing a 5 percent EMSY and 

additionally has no evidence that this 

would represent best scientific 

information available. NMFS recognizes 

that a harvest rate of 5 percent was 

considered as part of alternative 3 for 

Amendment 18, and this could remain 

a potential alternative under any future 

rebuilding plan; however, NMFS has 

determined it does not represent the 

best scientific information available for 

use as an EMSY to calculate this year’s 

OFL. NMFS has no basis to consider a 

5 percent EMSY as alternative best 

scientific information available. Unlike 

the stochastic 18 percent described 

above, 5 percent is not a result of 

modeling work explicitly designed to 

calculate EMSY. The 5 percent value 

under alternative 3 represented a 

harvest level between status quo 

management and zero U.S. harvest, 

which was analyzed as a policy option 

to explore the differences in potential 

rebuilding timelines as a result of 

reduced harvest levels. Absent any 

support for an EMSY of 5 percent as a 

basis for calculating the OFL, NMFS 

could not determine that it was the best 

scientific information available. 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 89, No. 229 / Wednesday, November 27, 2024 / Rules and Regulations 93527 

In addition, Oceana’s suggestion that 

NMFS could ‘‘readily’’ produce an 

updated EMSY from the 2024 stock 

assessment as was done for the central 

subpopulation of northern anchovy 

(CSNA) is misleading, because the 2024 

sardine stock assessment did not 

produce an EMSY that could be 

considered in this rulemaking. The 

management of Pacific sardine has 

never utilized an EMSY derived from a 

stock assessment model. No such EMSY

is available because it has not been 

produced by scientists and peer 

reviewed, and thus an EMSY derived 

from a stock assessment model would 

not be the best scientific information 

available as required under the MSA. 

Calculating EMSY for CPS stocks from a 

stock assessment requires scientists to 

run multiple data analyses, including 

reassessments to address potential 

issues, and these results would then 

need to be packaged and written up. 

This is not a straightforward process 

that could be accomplished and 

appropriately reviewed in the time 

available to complete this rulemaking. 

The complications of this process are 

highlighted by the CSNA EMSY

development. The most appropriate way 

to calculate the CSNA EMSY was 

discussed at multiple meetings, 

including the STAR panel meeting for 

the 2022 CSNA assessment as well as a 

full SSC meeting. These discussions 

included scientifically technical 

deliberations on the parameters of the 

stock assessment that influence the 

EMSY calculation. Ultimately the SSC 

recommended an EMSY value resulting 

from the stock assessment model; 

however, at the time the SSC noted that 

uncertainty in that value remained: 

‘‘The SSC endorses the EMSY value 

(labeled FMSY in the assessment) of 

0.493 estimated within the assessment, 

where E is expressed as annual total 

catch divided by summary age-1+ 

biomass, while noting that the value of 

EMSY remains a major uncertainty.’’ 

During the 2024 Pacific sardine stock 

assessment process an EMSY was not 

developed. Furthermore, any sort of 

EMSY from the assessment model for 

Pacific sardine would likely carry 

similar uncertainties as those associated 

with the CSNA value that would require 

a thorough review and would not be 

reliable for the 2024–25 specifications. 

Comment 3: Oceana states that the 

proposed ACL would not allow 

rebuilding within the legally required 

timeline because it represents a harvest 

rate and overall catch level that NMFS’s 

rebuilding analysis showed will not 

rebuild the Pacific sardine population. 

Oceana states that in contrast, NMFS’s 

rebuilding analysis showed that a 

constant catch of 2,200 metric tons or a 

5 percent harvest rate would rebuild the 

population. 

Response: NMFS acknowledges that 

the Court’s order vacated parts of the 

rebuilding plan that must be addressed 

by June 1, 2025, including that the plan 

failed to rebuild the stock within the 

statutory timeframe under the MSA. The 

Court has provided NMFS until June 1, 

2025 to develop a new rebuilding plan 

that will specify a time period for 

rebuilding Pacific sardine that will be as 

short as possible, taking into account 

the status and biology of any overfished 

stocks of fish, the needs of fishing 

communities, recommendations by 

international organizations in which the 

United States participates, and the 

interaction of the overfished stock of 

fish within the marine ecosystem. The 

rebuilding plan will also include 

conservation and management measures 

consistent with achieving rebuilding 

within the specified time period. It is 

not required by the Court’s order to 

implement this rebuilding plan in this 

rule. 

Comment 4: Oceana states that given 

the uncertainties, evidence of previous 

overfishing, and the need to rebuild, 

Oceana recommended NMFS use a 

lower P-star parameter than the 0.4 

recommended by the Council. Noting 

that P-star represents the risk of 

overfishing. 

Response: The choice of P-star is only 

one factor in creating a buffer between 

the OFL and ABC to help ensure 

overfishing is prevented. The other 

factor used for Pacific sardine is the 

sigma value recommended by the SSC. 

This sigma value is intended to capture 

scientific uncertainty in the OFL 

estimate. The Council’s P-star choice is 

then intended to capture other factors, 

such as management uncertainty, in 

preventing overfishing. There is 

extremely limited management 

uncertainty associated with tracking 

catch levels against the applicable catch 

reference points for Pacific sardine. 

NMFS is readily able to track fishing 

mortality across the various sectors in 

season to ensure landings do not exceed 

the ACL or ABC. NMFS therefore has 

determined that the ABC has been 

appropriately reduced from the OFL to 

prevent overfishing. 

Comment 5: Oceana states that given 

the stock remains near the 50,000 mt 

minimum stock size threshold, the 

proposed incidental harvest rate of 30 

percent is excessive. 

Response: The CPS FMP dictates that 

if the estimated biomass is below 50,000 

mt, then the incidental harvest rate is 

restricted to 20 percent landing by 

weight. The 2024 estimated biomass is 

58,614 mt. Under the CPS FMP, at this 

value, the incidental rate could be up to 

45 percent; therefore, 30 percent is in 

line with the allowances of the CPS 

FMP. Additionally, during the 2018– 

2019 fishing year, the last year that the 

stock’s biomass was more than 50,000 

mt, the incidental harvest allowance 

was 40 percent, and the incidental 

fishery harvested 272 mt. The following 

year, the incidental harvest allowance 

was restricted to 20 percent, and the 

incidental fishery harvested 249 mt. 

Increasing the incidental harvest 

allowance doesn’t necessarily change 

the amount of Pacific sardine catch, but 

allows more flexibility for vessels to 

reduce unwanted discards when the 

catch ratio of sardine to other CPS is 

greater than 20 percent. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

MSA, the NMFS Assistant 

Administrator has determined that this 

final rule is consistent with the CPS 

FMP, other provisions of the MSA, and 

other applicable law. 

This final rule is exempt from review 

under Executive Order 12866 because it 

is a routine rule that would implement 

regulations for less than 1 year. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities for the purposes of the 

Regulatory Flexibility Act. The factual 

basis for the certification was published 

in the proposed rule (89 FR 52005, June 

21, 2024) and is not repeated here. As 

a result, a final regulatory flexibility 

analysis was not required and none was 

prepared. 

Pursuant to Executive Order 13175, 

this proposed rule was developed after 

meaningful consultation and 

collaboration with the Council’s tribal 

representative, who has agreed with the 

provisions that apply to tribal vessels. 

This action does not contain a 

collection-of-information requirement 

for purposes of the Paperwork 

Reduction Act. There are no relevant 

Federal rules that may duplicate, 

overlap, or conflict with the proposed 

action. 

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

Dated: November 20, 2024. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2024–27685 Filed 11–26–24; 8:45 am] 

BILLING CODE 3510–22–P 


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