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[Federal Register Volume 89, Number 229 (Wednesday, November 27, 2024)]
[Rules and Regulations]
[Pages 93522-93527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27685]

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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.

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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, [email protected].

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

[[Page 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 temperature-
recruitment 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

[[Page 93524]]

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 non-governmental 
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 high-priority 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 [deg]C when 
the median temperature was 15.90 [deg]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

[[Page 93525]]

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\
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    \1\ Hurtado-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.
    \2\ Prior 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.
    \3\ Scientific and Statistical Committee Minutes. April 2023. 
PFMC. https://www.pcouncil.org/documents/2023/06/scientific-and-statistical-committee-draft-april-1-2-2023-minutes.pdf/.
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    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.
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    \4\ Pikitch, E. et al. 2012. Little Fish, Big Impact: Managing a 
Crucial Link in Ocean Food Webs. Lenfest Ocean Program. Washington, 
DC. 108 pp.
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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
----------------------------------------------------------------------------------------------------------------
                                                                 Total landings of
                                                                  Pacific sardine         Assumed landings of
                 Fishing year                       ACL         (combined catch of       northern subpopulation
                                                               northern and southern       of Pacific sardine
                                                                  subpopulations)
----------------------------------------------------------------------------------------------------------------
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,

[[Page 93526]]

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 CalCOFI-based 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) re-evaluated 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.
---------------------------------------------------------------------------

    \5\ Zwolinski, 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.
---------------------------------------------------------------------------

    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.

[[Page 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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