[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]
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Biomass estimate OFL ABC HG ACL ACT
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58,614............................................................. 8,312 6,005 0 6,005 5,500
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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
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Total landings of
Pacific sardine Assumed landings of
Fishing year ACL (combined catch of northern subpopulation
northern and southern of Pacific sardine
subpopulations)
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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
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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.
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\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.
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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]
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