[Federal Register Volume 79, Number 92 (Tuesday, May 13, 2014)]
[Rules and Regulations]
[Pages 27198-27211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10746]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 131119977-4381-02]
RIN 0648-BD75
Magnuson-Stevens Act Provisions; Fisheries off West Coast States;
Pacific Coast Groundfish Fishery; Annual Specifications and Management
Measures for the 2014 Tribal and Non-Tribal Fisheries for Pacific
Whiting
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule for the 2014 Pacific whiting
fishery under the authority of the Pacific Coast Groundfish Fishery
Management Plan (FMP), the Magnuson Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of
2006. This final rule announces the 2014 U.S. TAC, establishes the
tribal allocation of 55,336 metric tons of Pacific whiting for 2014,
establishes a set-aside for research and bycatch of 1,500 metric tons,
and announces the final allocations of Pacific whiting to the non-
tribal fishery for 2014.
DATES: Effective May 13, 2014.
FOR FURTHER INFORMATION CONTACT: Kevin C. Duffy (Northwest Region,
NMFS), phone: 206-526-4743, and email: [email protected].
SUPPLEMENTARY INFORMATION:
Electronic Access
This final rule is accessible via the Internet at the Office of the
Federal Register Web site at https://www.federalregister.gov.
Background information and documents are available at the NMFS West
Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific
Fishery Management Council's Web site at http://www.pcouncil.org/.
Copies of the final environmental impact statement (FEIS) for the
2013-2014 Groundfish Specifications and Management Measures are
available from Donald McIsaac, Executive Director, Pacific Fishery
Management
[[Page 27199]]
Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone:
503-820-2280.
Background
This rule announces the Total Allowable Catch (TAC) for whiting,
expressed in metric tons (mt). This is the third year that the TAC for
Pacific whiting has been determined under the terms of Agreement with
Canada on Pacific Hake/Whiting (the Agreement) and the Pacific Whiting
Act of 2006 (the Whiting Act), 16 U.S.C. 7001-7010. The Agreement and
the Act establish bilateral bodies to implement the terms of the
Agreement, each with various responsibilities, including: the Joint
Management Committee (JMC), which is the decision-making body; the
Joint Technical Committee (JTC), which conducts the stock assessment;
the Scientific Review Group (SRG), which reviews the stock assessment;
and the Advisory Panel (AP), which provides stakeholder input to the
JMC (The Agreement, Art. II-IV; 16 U.S.C. 7001-7005). The Agreement
establishes a default harvest policy (F-40 percent with a 40/10
adjustment) and allocates 73.88 percent of the TAC to the United States
and 26.12 percent of the TAC to Canada. The bilateral JMC is primarily
responsible for developing a TAC recommendation to the Parties (United
States and Canada). The Secretary of Commerce, in consultation with the
Secretary of State, has the authority to accept or reject this
recommendation.
The bilateral Joint Technical Committee (JTC) prepared the stock
assessment document ``Status of Pacific hake (whiting) stock in U.S.
and Canadian waters in 2014 with a management strategy evaluation''
that was completed on February 28, 2014. This assessment presents a
single base-case model that depends primarily upon 10 years of an
acoustic survey biomass index as well as catches for information on the
scale of the current whiting stock. The 2013 survey biomass estimate
presented in the 2014 assessment is 2.4 million metric tons, which is
within 5 percent of the all-time high survey biomass estimate in 2003,
1.8 times the 2012 survey biomass estimate, and 4.6 times the 2011
biomass estimate. Based on all 2013 data, the assessment estimates that
the stock is at 95.9 percent of unfished levels. The age-composition
data from the aggregated fisheries (1975-2013) and the acoustic survey
contribute to the assessment model's ability to resolve strong and weak
cohorts. Both sources indicate a strong 2008 cohort (age-5 whiting),
and an exceptionally strong 2010 cohort (age-3 whiting) contributing to
recent increases in the survey index.
The JTC provided tables showing catch alternatives for 2014. Using
the default F-40 percent harvest rule identified in the Agreement
[Paragraph 1 of Article III], the median catch for 2014 would provide
for a coastwide TAC of 872,424 mt. In order to provide some context to
the final TAC decision, the JTC provided the median results of model
runs as compared to various parameters. The probability that the
fishing intensity would be above the target in 2014 is 50 percent with
a catch of 825,000 mt. Using the lowest 10 percent of model estimates,
there is an equal probability that the spawning biomass will be above
or below 40 percent of unfished equilibrium spawning biomass with a
2014 catch near 425,000 mt. The model predicts that the probability of
dropping below 10 percent of unfished biomass in 2014 is effectively
zero, and that the maximum probability of the spawning stock biomass
dropping below 40 percent in 2014 is 13 percent for all catch levels
considered.
Until cohorts are five or six years old, the model's ability to
resolve cohort strength is poor. For many of the recent above average
cohorts (2005, 2006, and 2008), the size of the year class was
overestimated when it was age two, compared to updated estimates as the
cohort aged and more observations were available from the fishery and
survey. Given this trend and an uncertain 2010 year class, additional
forecast decision tables were presented last year and a conservative
estimate of the 2010 year class (the lower 10 percent of the model
estimated recruitment) was used to set the 2013 bilateral TAC. Survey
and fishery dependent data from 2013 reveal a strong likelihood that
the 2010 year class is of above average size, but there is still some
uncertainty about how much above average. Because of this, the decision
tables presented in 2014 continued to depict a scenario using the lower
10 percent of the estimated 2010 recruitment, along with the middle 80
percent and upper 10 percent 2010 recruitment scenarios.
The Scientific Review Group (SRG) met in Seattle, WA, on February
18-21, 2014, to review the draft stock assessment document prepared by
the JTC. The SRG noted that the 2013 acoustic trawl survey resulted in
a relative biomass estimate of 2,420,000 mt, a substantial increase
from the 2012 survey biomass of 1,380,000 mt. The survey and the
fishery were dominated by age 3 fish (76.2 percent survey; 66.9 percent
fishery by numbers) from the 2010 year class, with differences due to
the different selectivity of young fish to the survey vs. the fishery.
The median estimated female biomass is 1,720,000 mt at the beginning of
2014, the largest in the time series since 1992. There is agreement
between the most recent acoustic survey and commercial fishery age
composition data, as well as the most recent acoustic survey biomass
index. This alignment of data from separate sources engenders greater
confidence in the 2014 assessment result.
Because of the substantial increase in the biomass compared to
2012, the SRG explored the results in more detail. They requested a
sensitivity run of the model that excluded extrapolations of biomass
outside the survey area. This run resulted in a 127,000 mt decrease in
the harvest applying the default policy. The SRG also reviewed results
of the Management Strategy Evaluation (MSE) in the assessment document.
They noted that the MSE provides insight into the risks and long-term
implications of strictly implementing the default harvest control rule,
and suggests goals and objectives of the fishery be clarified to guide
the MSE. The SRG also noted that the MSE estimates the added value of
an annual survey (versus biennial) to be relatively low. However, in
some circumstances, an annual survey would be very informative.
The SRG noted that, according to the model, an equal probability of
being above or below the default F-40 percent harvest rate specified in
the Agreement could be achieved with a catch of 825,000 mt in 2014 and
660,000 mt in 2015. They also noted that a 2014 catch of up to 500,000
mt is estimated to maintain the stock above B40 at the start
of 2015. The SRG and the JTC recommended an available harvest level
range of 336,000-626,000 mt to the JMC for 2014.
At its March 18-20, 2014, meeting, the Joint Management Committee
(JMC) reviewed the advice of the Joint Technical Committee (JTC), the
Scientific Review Group (SRG), and the Advisory Panel (AP), and agreed
on a TAC recommendation for transmittal to the Parties.
Paragraph 1 of Article III of the Agreement directs the default
harvest rate to be used unless scientific evidence demonstrates that a
different rate is necessary to sustain the offshore whiting resource.
The JMC noted that there is still some uncertainty about the strength
of the 2010 year class, acknowledged the overall stock is dominated by
the 2010 year class, and that there is currently no evidence of large
recruitments in more recent year classes. Because of these factors, the
[[Page 27200]]
JMC did not apply the default harvest rate under the Agreement to
determine a TAC for 2014. They chose to recommend a TAC of 425,000 mt
for 2014, which is less than half of what the TAC would be by using the
default harvest rate. This conservative approach that focused on
uncertainty of the 2010 year class strength, coupled with no evidence
of large recruitments in more recent year classes, was also endorsed by
the AP.
The recommendation for an adjusted United States TAC of 316,206 mt
for 2014 (73.88 percent of the coastwide TAC) is consistent with the
best available science, provisions of the Agreement, and the Whiting
Act. The recommendation was transmitted via letter to the Parties on
March 20, 2014. NMFS, under delegation of authority from the Secretary
of Commerce, approved the TAC recommendation of 316,206 mt for U.S.
fisheries on April 11, 2014.
Tribal Fishery Allocation
This final rule establishes the tribal allocation of Pacific
whiting for 2014. NMFS issued a proposed rule for the allocation and
management of the 2014 tribal Pacific whiting fishery on February 28,
2014 (79 FR 11385). This action finalizes the allocation and management
measures.
Since 1996, NMFS has been allocating a portion of the U.S. TAC of
Pacific whiting to the tribal fishery using the process established in
Sec. 660.50(d)(1). According to Sec. 660.55(b), the tribal allocation
is subtracted from the total U.S. Pacific whiting TAC. The tribal
Pacific whiting fishery is managed separately from the non-tribal
whiting fishery, and is not governed by the limited entry or open
access regulations or allocations.
The proposed rule described the tribal allocation as 17.5 percent
of the U.S. TAC, and projected a range of potential tribal allocations
for 2014 based on a range of U.S. TACs over the last 10 years, 2004
through 2013 (plus or minus 25 percent to capture variability in stock
abundance). This range of TACs is 135,939 mt (2009) to 290,903 mt
(2011). Applying the 25 percent variability results in a range of
potential TACs from 101,954 mt to 363,629 mt. The resulting range of
potential tribal allocations is 17,842 mt to 63,635 mt.
As described earlier in this preamble, the U.S. TAC for 2014 is
316,206 mt. Applying the approach described in the proposed rule, NMFS
calculated that the tribal allocation implemented by this final rule is
55,336 (17.5 percent of the U.S. TAC). While the total amount of
whiting to which the Tribes are entitled under their treaty right has
not yet been determined, and new scientific information or discussions
with the relevant parties may impact that decision, the best available
scientific information to date suggests that 55,336 mt is within the
likely range of potential treaty right amounts.
As with prior tribal whiting allocations, this final rule is not
intended to establish any precedent for future Pacific whiting seasons,
or for the determination of the total amount of whiting to which the
Tribes are entitled under their treaty right. Rather, this rule adopts
an interim allocation, pending the determination of the total treaty
amount. That amount will be based on further development of scientific
information and additional coordination and discussion with and among
the coastal tribes and States of Washington and Oregon. The process of
determining that amount, begun in 2008, is continuing.
Non-Tribal Allocations
This final rule establishes the non-tribal allocation for the
Pacific whiting fishery. The non-tribal allocation was not included in
the tribal whiting proposed rule published on February 28, 2014 (79 FR
11385) for two reasons related to timing and process. First, a
recommendation on the coastwide TAC for Pacific whiting for 2014, under
the terms of the Agreement with Canada, was not available until March
20, 2014. This recommendation for a U.S. TAC was approved by NMFS,
under delegation of authority from the Secretary of Commerce, on April
11, 2014. Second, the non-tribal allocation is established following
deductions from the U.S. TAC for the tribal allocation (55,336 mt) and
set asides for research and incidental catch in non-groundfish
fisheries (1,500 mt). The Council establishes the research and bycatch
set-aside on an annual basis at its April meeting, based on estimates
of scientific research catch and estimated bycatch mortality in non-
groundfish fisheries. For 2014, the Council recommended and the West
Coast Region approves a research and bycatch set-aside of 1,500 mt.
These amounts are not set until the TAC is available. The non-tribal
allocation is therefore being finalized in this rule.
The 2014 fishery harvest guideline (HG), or non-tribal allocation,
for Pacific whiting is 259,370 mt. This amount was determined by
deducting from the total U.S. TAC of 316,206 mt, the 55,336 mt tribal
allocation, along with 1,500 mt for research catch and bycatch in non-
groundfish fisheries. Regulations at Sec. 660.55(i)(2) allocate the
fishery HG among the non-tribal catcher/processor, mothership, and
shorebased sectors of the Pacific whiting fishery. The catcher/
processor sector is allocated 34 percent (88,186 mt for 2014), the
mothership sector is allocated 24 percent (62,249 mt for 2014), and the
shorebased sector is allocated 42 percent (108,935 mt for 2014). The
fishery south of 42[deg] N. lat. may not take more than 5,447 mt (5
percent of the shorebased allocation) prior to the start of the primary
Pacific whiting season north of 42[deg] N. lat.
The 2014 allocations of Pacific Ocean perch, canary rockfish,
darkblotched rockfish, and widow rockfish to the whiting fishery were
published in a final rule on January 3, 2013 (78 FR 580). The
allocations to the Pacific whiting fishery for these species are
described in the footnotes to Table 2.b to Part 660, Subpart C-2014.
Comments and Responses
On February 28, 2014, NMFS issued a proposed rule for the
allocation and management of the 2014 tribal Pacific whiting fishery.
The comment period on the proposed rule closed on March 31, 2014.
During the comment period, NMFS received two letters of comment. The
U.S. Department of the Interior submitted a letter of ``no comment''
associated with their review of the proposed rule.
The second letter was received from a commercial fishing
organization. In their letter, they state that given past performance
in the tribal fishery, and the potential economic harm to the non-
tribal fishery, the proposed tribal whiting set aside is too high. They
state that if the tribal allocation is set too high, and NMFS is less
than effective in using their reapportionment authority to reallocate
unused whiting in the tribal fishery to the non-tribal sector, then
whiting will be stranded in the 2014 tribal fishery, thereby limiting
the non-tribal fishery's ability to maximize harvest. They urge NMFS to
aptly and effectively exercise their reapportionment authority in 2014.
Response: In determining the tribal allocation, NMFS must ensure
that the tribes have the opportunity to exercise their treaty right,
which is ``other applicable law'' under the Magnuson-Stevens Act. As
noted above, the amount requested by the tribes appears to be within
the amount to which they are entitled by treaty, as suggested by the
best available science. The allocation to the tribal fishery in 2014 is
17.5 percent of the TAC, versus 23 percent of the TAC in 2013.
As the commenter has noted, the reapportionment process is
available to NMFS to address the situation in which
[[Page 27201]]
the tribes are unable to use their full allocation. NMFS acknowledges
that we should exercise our reapportionment authority effectively. To
that end, NMFS will monitor both the tribal and non-tribal fishery
during the season, and will increase communications with tribal
representatives in order to determine, to the extent practicable, the
likely harvest levels in the tribal fishery. If circumstances
supporting reapportionment under NMFS' regulations arise, NMFS will be
prepared to expeditiously reapportion Pacific whiting that was not
harvested by the tribal fishery to the non-tribal sector, in order to
manage the fishery in a manner consistent with both the implementation
of the tribal treaty right and the Magnuson Stevens Act requirements.
Classification
The final Pacific whiting specifications and management measures
for 2014 are issued under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (MSA), and the Pacific Whiting Act of
2006, and are in accordance with 50 CFR part 660, subparts C through G,
the regulations implementing the Pacific Coast Groundfish Fishery
Management Plan (PCGFMP). NMFS has determined that this rule is
consistent with the national standards of the Magnuson-Stevens Act and
other applicable laws. NMFS, in making the final determination, took
into account the data, views, and comments received during the comment
period.
NMFS has determined that the tribal whiting fishery conducted off
the coast of the State of Washington is consistent, to the maximum
extent practicable, with the approved coastal zone management program
of the States of Washington and Oregon. NMFS has also determined that
the Pacific whiting fishery, both tribal and non-tribal, is consistent,
to the maximum extent practicable, with approved coastal zone
management programs for the States of Washington and Oregon. The States
of Washington and Oregon did not respond to the letters NMFS sent
describing its determination of consistency dated February 4, 2014;
therefore, consistency is inferred.
Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b)(B), the NMFS Assistant Administrator
finds good cause to waive prior public notice and comment and delay in
effectiveness the 2014 annual harvest specifications for Pacific
whiting, as delaying this rule would be contrary to the public
interest. The annual harvest specifications for Pacific whiting must be
implemented by the start of the primary Pacific whiting season, which
begins on May 15, 2014, or the primary whiting season will effectively
remain closed.
Every year, NMFS conducts a Pacific whiting stock assessment in
which U.S. and Canadian scientists cooperate. The 2014 stock assessment
for Pacific whiting was prepared in early 2014, as the new 2013 data--
including updated total catch, length and age data from the U.S. and
Canadian fisheries, and biomass indices from the Joint U.S.-Canadian
acoustic/midwater trawl surveys--were not available until January,
2014. Because of this late availability of the most recent data for the
assessment, and the need for time to conduct the treaty process for
determining the TAC using the most recent assessment, it would not be
possible to allow for notice and comment before the start of the
primary Pacific whiting season on May 15.
A delay in implementing the Pacific whiting harvest specifications
to allow for notice and comment would be contrary to the public
interest because it would require either a shorter primary whiting
season or development of a TAC without the most recent data. A shorter
season could prevent the tribal and non-tribal fisheries from attaining
their 2014 allocations, which would result in unnecessary short-term
adverse economic effects for the Pacific whiting fishing vessels and
the associated fishing communities. A TAC determined without the most
recent data could fail to account for significant fluctuations in the
biomass of this relatively short-lived species. To prevent these
adverse effects and to allow the Pacific whiting season to commence, it
is in the public interest to waive prior notice and comment.
In addition, pursuant to 5 U.S.C 553(d)(3), the NMFS Assistant
Administrator finds good cause to waive the 30-day delay in
effectiveness. Waiving the 30-day delay in effectiveness will not have
a negative impact on any entities, as there are no new compliance
requirements or other burdens placed on the fishing community with this
rule. Failure to make this final rule effective at the start of the
fishing year will undermine the intent of the rule, which is to promote
the optimal utilization and conservation of Pacific whiting. Making
this rule effective immediately would also serve the best interests of
the public because it will allow for the longest possible Pacific
whiting fishing season and therefore the best possible economic outcome
for those whose livelihoods depend on this fishery. Because the 30-day
delay in effectiveness would potentially cause significant financial
harm without providing any corresponding benefits, this final rule is
effective upon publication in the Federal Register.
The preamble to the proposed rule and this final rule serve as the
small entity compliance guide required by Section 212 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This action does
not require any additional compliance from small entities that is not
described in the preamble. Copies of this final rule are available from
NMFS at the following Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html.
Executive Order (EO) 12866
The Office of Management and Budget has determined that this final
rule is not significant for purposes of Executive Order 12866.
Executive Order 12866 can be found at http://www.plainlanguage.gov/populartopics/regulations/eo12866.pdf.
Regulatory Flexibility Act (RFA)
When an agency proposes regulations, the RFA requires the agency to
prepare and make available for public comment an Initial Regulatory
Flexibility Act (IRFA) document that describes the impact on small
businesses, non-profit enterprises, local governments, and other small
entities. The IRFA is to aid the agency in considering all reasonable
regulatory alternatives that would minimize the economic impact on
affected small entities. After the public comment period, the agency
prepares a Final Regulatory Flexibility Analysis (FRFA) that takes into
consideration any new information and public comments. This FRFA
incorporates the IRFA, a summary of the significant issues raised by
the public comments, NMFS' responses to those comments, and a summary
of the analyses completed to support the action. NMFS published the
proposed rule on February 28, 2014 (79 FR 11385), with a comment period
through March 31, 2014. An IRFA was prepared and summarized in the
Classification section of the preamble to the proposed rule. The
description of this action, its purpose, and its legal basis are
described in the preamble to the proposed rule and are not repeated
here. The FRFA describes the impacts on small entities, which are
defined in the IRFA for this action and not repeated here. Analytical
requirements for the FRFA are described in Regulatory Flexibility Act,
section 304(a)(1) through (5), and summarized
[[Page 27202]]
below. The FRFA must contain: (1) A succinct statement of the need for,
and objectives of, the rule; (2) A summary of the significant issues
raised by the public comments in response to the initial regulatory
flexibility analysis, a summary of the assessment of the agency of such
issues, and a statement of any changes made in the proposed rule as a
result of such comments; (3) A description and an estimate of the
number of small entities to which the rule will apply, or an
explanation of why no such estimate is available; (4) A description of
the projected reporting, recordkeeping and other compliance
requirements of the rule, including an estimate of the classes of small
entities which will be subject to the requirement and the type of
professional skills necessary for preparation of the report or record;
and (5) A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
This rule establishes the 2014 harvest specifications for Pacific
whiting and the allocation of Pacific whiting for the tribal whiting
fishery. This rule establishes the initial 2014 Pacific whiting
allocations for the tribal fishery and the non-tribal sectors (catcher/
processor, mothership, and shoreside), and the amount of Pacific
whiting set aside for research and incidental catch in other fisheries.
The amount of whiting allocated to these sectors is based on the U.S.
TAC. From the U.S. TAC, small amounts of whiting that account for
scientific research catch and for bycatch in other fisheries are
deducted. The amount of the tribal allocation is also deducted directly
from the TAC prior to allocations to the non-tribal sectors. The
remainder is the fishery harvest guideline. This guideline is then
allocated among the other three sectors as follows: 34 percent for the
C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent
for the Shorebased IFQ Program.
In 2013, the total estimated catch of whiting by tribal and non-
tribal fishermen was 233,000 mt, or 86 percent of the U.S. TAC (269,745
mt). There was a fall reapportionment of 30,000 mt of Pacific whiting
from the tribal to non-tribal sectors (September 18, 2013). The tribal
harvest was 4,906 mt, approximately 15 percent of the final tribal
allocation of 33,205 mt. In total, non-tribal sectors harvested 98
percent of the final non-tribal allocation of 234,040 mt. This rule
increases the U.S. TAC for 2014 to 316,206 mt, and establishes the
tribal allocation of 17.5 percent of the U.S. TAC at 55,336 mt. After
setting aside 1,500 mt for research catch and bycatch in non-groundfish
fisheries, the overall non-tribal allocation for 2014 is 259,370 mt.
The initial 2014 allocations to these non-tribal sectors are 27 percent
higher than their 2013 initial allocations. The non-tribal allocation
is 12 percent higher than the 2013 non-tribal catch.
In 2013, total Pacific whiting ex-vessel revenues earned by tribal
and non-tribal fisheries reached about $61 million. If the 2014 TAC is
entirely harvested, projected ex-vessel revenues would reach $82
million, based on 2013 ex-vessel prices. (Note that ex-vessel revenues
do not take into account wholesale or export revenues or the costs of
harvesting and processing whiting into a finished product.)
There were no significant issues raised by the public comments in
response to the IRFA. However, there was one comment that referred to
small entities. Noting that the highest annual tribal catch has been
34,500 mt, one association representing large fishing companies
commented that the proposed tribal allocation is too high. They
suggested that NMFS should be more effective in reapportioning tribal
whiting to minimize the amount of whiting stranded, as the
reapportioning process allows unharvested tribal allocations to be
fished by non-tribal fleets, benefitting both large and small
businesses. A detailed response to these comments is included in the
comment and response section of this final rule.
This rule establishes a tribal allocation of 55,336 mt, which is
lower than the 2013 tribal allocation of 63,205 mt. This allocation is
based on NMFS consultations with the tribes upon which tribes discuss
their plans with NMFS. This allocation amount is likely within the
tribal treaty right to harvest. Applicable law requires NMFS to provide
the tribes with the opportunity to harvest their treaty right. Should
reapportionment be warranted, after discussions with the tribes, NMFS
will determine the appropriate amount of fish to provide to the non-
tribal fleets in accordance with applicable law.
It should be also noted that under Agreement with Canada on Pacific
Hake/Whiting, as described in 77 FR 28501 (May 15, 2012), unharvested
fish are not necessarily ``stranded.'' If at the end of the year, there
are unharvested allocations, there are provisions for an amount of
these fish to be carried over into the next year's allocation process.
The Agreement states that ``[I]f, in any year, a Party's catch is less
than its individual TAC, an amount equal to the shortfall shall be
added to its individual TAC in the following year, unless otherwise
recommended by the JMC. Adjustments under this sub-paragraph shall in
no case exceed 15 percent of a Party's unadjusted individual TAC for
the year in which the shortfall occurred.'' Such an adjustment was made
for the 2014 fishery under the Agreement. This adjustment resulted in
13,172 mt being added to the Canadian share, for an adjusted Canadian
TAC of 111,794 mt; and 37,258 mt being added to the United States
share, for an adjusted United States TAC of 316,206 mt. This results in
a coastwide adjusted TAC of 428,000 mt for 2014.
The entities that this rule impacts are catcher vessels in the
tribal fishery, and the following in the non-tribal fishery: Catcher
vessels delivering to shoreside facilities; catcher vessels delivering
to mothership vessels at sea; and catcher/processor vessels. Under the
RFA, the term ``small entities'' includes small businesses, small
organizations, and small governmental jurisdictions. The Small Business
Administration has established size criteria for all different industry
sectors in the United States, including fish harvesting and fish
processing businesses. On June 20, 2013, the SBA issued a final rule
revising the small business size standards for several industries
effective July 22, 2013 (78 FR 37398; June 20, 2013). This change
affects the classification of vessels that harvest groundfish under
this program. The rule increased the size standard for Finfish Fishing
from $4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0
million, and Other Marine Fishing from $4.0 to $7.0 million (Id. at
37400--Table 1). Prior to SBA's recent changes to the size standards
for commercial harvesters, a business involved in both the harvesting
and processing of seafood products, also referred to as a catcher/
processor (C/P), was considered a small business if it met the $4.0
million criterion for commercial fish harvesting operations. Prior NMFS
policy was to apply the $4 million Finfish Harvest standard to C/Ps.
For purposes of this rulemaking, NMFS is applying the $19 million
standard because whiting C/Ps are involved in the commercial harvest of
finfish. The size standards for entities that process were not changed.
A seafood processor is a small business if it is independently owned
and operated, not dominant in its field of operation,
[[Page 27203]]
and employs 500 or fewer persons on a full time, part time, temporary,
or other basis, at all its affiliated operations worldwide.
There are four tribes that can participate in the tribal whiting
fishery: The Hoh, Makah, Quileute, and Quinault. The current tribal
fleet is composed of 5 trawlers that either deliver to a shoreside
plant or to a contracted mothership. Based on groundfish ex-vessel
revenues and on tribal enrollments (the population size of each tribe),
the four tribes and their fleets are considered ``small'' entities.
This rule would impact vessels in the non-tribal fishery that fish for
Pacific whiting. Currently, there are three non-tribal sectors in the
Pacific whiting fishery: shorebased Individual Fishing Quota (IFQ)
Program--Trawl Fishery; Mothership Coop (MS) Program--Whiting At-sea
Trawl Fishery; and catcher-processor (C/P) Coop Program--Whiting At-sea
Trawl Fishery. The Shorebased IFQ Program is composed of 138 Quota
Share permits/accounts, 136 vessel accounts, and 42 first receivers.
The MS Coop fishery is currently composed of a single coop, with six
mothership processor permits, and 36 Mothership/Catcher-Vessel (MS/CV)
endorsed permits, with one permit having two catch history assignments
endorsed to it. The C/P Coop Program is composed of 10 C/P permits
owned by three companies. Although there are three non-tribal sectors,
many companies participate in two or more of these sectors. All
mothership catcher-vessel participants participate in the shorebased
IFQ sector, while two of the three catcher-processor companies also
participate in both the shorebased IFQ sector and in the MS sector.
Many companies own several QS accounts. After accounting for cross
participation, multiple QS account holders, and for affiliation through
ownership, there are 95 entities directly affected by these
regulations, 82 of which are considered to be ``small'' businesses.
There are no recordkeeping requirements associated with this final
rule.
This final rule directly regulates what entities can harvest
whiting. This rule allocates fish between tribal harvesters (harvest
vessels are small entities, tribes are small jurisdictions) and to non-
tribal harvesters (a mixture of small and large businesses). Tribal
fisheries are a mixture of activities that are similar to the
activities that non-tribal fisheries undertake. Tribal harvests are
delivered to both shoreside plants and motherships for processing.
These processing facilities also process fish harvested by non-tribal
fisheries.
The alternatives to the 2014 interim tribal allocation implemented
by this rule are the ``No-Action'' and the ``Proposed Action (or
preferred alternative).'' The preferred alternative, based on
discussions with the tribes, is for NMFS to allocate 17 percent of the
U.S. total allowable catch for 2014. NMFS did not consider a broader
range of alternatives to the proposed allocation. The tribal allocation
is based primarily on the requests of the tribes. These requests
reflect the level of participation in the fishery that will allow them
to exercise their treaty right to fish for whiting. Consideration of
amounts lower than the tribal requests is not appropriate in this
instance. As a matter of policy, NMFS has historically supported the
harvest levels requested by the tribes. Based on the information
available to NMFS, the tribal request is within their tribal treaty
rights, and the participating tribe has on occasion shown an ability to
harvest the amount of whiting requested. A higher allocation would,
arguably, also be within the scope of the treaty right. However, a
higher allocation would unnecessarily limit the non-tribal fishery.
A no-action alternative was considered, but the regulatory
framework provides for a tribal allocation on an annual basis only.
Therefore, no action would result in no allocation of Pacific whiting
to the tribal sector in 2014, which would be inconsistent with NMFS'
responsibility to manage the fishery consistent with the tribes' treaty
rights. Given that there is a tribal request for an allocation in 2014,
this alternative was rejected.
There are no significant alternatives to the rule that accomplish
the stated objectives of applicable statutes and the treaties with the
affected tribes that minimize any of the significant economic impact of
the proposed rule on small entities. NMFS believes this final rule will
not adversely affect small entities. Sector allocations are higher than
sector catches in 2013, so this rule will be beneficial to both large
and small entities.
No Federal rules have been identified that duplicate, overlap, or
conflict with this action.
The RFA can be found at http://www.archives.gov/federal-register/laws/regulatory-flexibility/ The NMFS Economic Guidelines that describe
the RFA and EO 12866 can be found at http://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf.
NMFS issued Biological Opinions under the ESA on August 10, 1990,
November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996,
and December 15, 1999, pertaining to the effects of the Pacific Coast
groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River
spring/summer, Snake River fall, upper Columbia River spring, lower
Columbia River, upper Willamette River, Sacramento River winter,
Central Valley spring, California coastal), coho salmon (Central
California coastal, southern Oregon/northern California coastal), chum
salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake
River, Ozette Lake), and steelhead (upper, middle and lower Columbia
River, Snake River Basin, upper Willamette River, central California
coast, California Central Valley, south/central California, northern
California, southern California). These biological opinions have
concluded that implementation of the FMP for the Pacific Coast
groundfish fishery was not expected to jeopardize the continued
existence of any endangered or threatened species under the
jurisdiction of NMFS, or result in the destruction or adverse
modification of critical habitat.
NMFS issued a Supplemental Biological Opinion on March 11, 2006,
concluding that neither the higher observed bycatch of Chinook in the
2005 whiting fishery nor new data regarding salmon bycatch in the
groundfish bottom trawl fishery required a reconsideration of its prior
``no jeopardy'' conclusion. NMFS also reaffirmed its prior
determination that implementation of the Groundfish PCGFMP is not
likely to jeopardize the continued existence of any of the affected
ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as
threatened under the ESA. The 1999 biological opinion concluded that
the bycatch of salmonids in the Pacific whiting fishery were almost
entirely Chinook salmon, with little or no bycatch of coho, chum,
sockeye, and steelhead.
On December 7, 2012, NMFS completed a biological opinion concluding
that the groundfish fishery is not likely to jeopardize non-salmonid
marine species, including listed eulachon, green sturgeon, humpback
whales, Steller sea lions, and leatherback sea turtles. The opinion
also concludes that the fishery is not likely to adversely modify
critical habitat for green sturgeon and leatherback sea turtles. An
analysis included in the same document as the opinion concludes that
the fishery is not likely to adversely affect green sea turtles, olive
ridley sea turtles, loggerhead sea
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turtles, sei whales, North Pacific right whales, blue whales, fin
whales, sperm whales, Southern Resident killer whales, Guadalupe fur
seals, or the critical habitat for Steller sea lions.
Steller sea lions and humpback whales are protected under the
Marine Mammal Protection Act (MMPA). Impacts resulting from fishing
activities proposed in this rule are discussed in the FEIS for the
2013-2014 groundfish fishery specifications and management measures.
West coast pot fisheries for sablefish are considered Category II
fisheries under the MMPA's List of Fisheries, indicating occasional
interactions. All other west coast groundfish fisheries, including the
trawl fishery, are considered Category III fisheries under the MMPA,
indicating a remote likelihood of or no known serious injuries or
mortalities to marine mammals. MMPA section 101(a)(5)(E) requires that
NMFS authorize the taking of ESA-listed marine mammals incidental to
U.S. commercial fisheries if it makes the requisite findings, including
a finding that the incidental mortality and serious injury from
commercial fisheries will have negligible impact on the affected
species or stock. As noted above, NMFS concluded in its biological
opinion for the groundfish fisheries that these fisheries were not
likely to jeopardize Steller sea lions or humpback whales. The eastern
distinct population segment of Steller sea lions was delisted under the
ESA on November 4, 2013 (78 FR 66140). On September 4, 2013, based on
its negligible impact determination dated August 28, 2013, NMFS issued
a permit for 3 years to authorize the incidental taking of humpback
whales by the sablefish pot fishery (78 FR 54553).
On November 21, 2012, the U.S. Fish and Wildlife Service (FWS)
issued a biological opinion concluding that the groundfish fishery will
not jeopardize the continued existence of the short-tailed albatross.
The FWS also concurred that the fishery is not likely to adversely
affect the marbled murrelet, California least tern, southern sea otter,
bull trout, nor bull trout critical habitat.
Pursuant to Executive Order 13175, this final rule was developed
after meaningful consultation and collaboration with tribal officials
from the area covered by the FMP. Consistent with the Magnuson-Stevens
Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific
Council is a representative of an Indian tribe with federally
recognized fishing rights from the area of the Council's jurisdiction.
In addition, NMFS has coordinated specifically with the tribes
interested in the whiting fishery regarding the issues addressed by
this rule.
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,
Reporting and recordkeeping requirements.
Dated: May 6, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 660 is amended
as follows:
PART 660--FISHERIES OFF WEST COAST STATES
0
1. The authority citation for part 660 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.
0
2. In Sec. 660.50, paragraph (f)(4) is revised to read as follows:
Sec. 660.50 Pacific Coast treaty Indian fisheries.
* * * * *
(f) * * *
(4) Pacific whiting. The tribal allocation for 2014 is 55,336 mt.
* * * * *
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3. Table 2a, to part 660, subpart C, is revised to read as follows:
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4. In Sec. 660.140, paragraph (d)(1)(ii)(D) is revised to read as
follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(d) * * *
(1) * * *
(ii) * * *
(D) For the trawl fishery, NMFS will issue QP based on the
following shorebased trawl allocations:
Shorebased Trawl Allocations
----------------------------------------------------------------------------------------------------------------
2013 Shorebased 2014 Shorebased
IFQ Species Management area trawl allocation trawl allocation
(mt) (mt)
----------------------------------------------------------------------------------------------------------------
Arrowtooth flounder....................... ............................ 3,846.13 3,467.08
BOCACCIO.................................. South of 40[deg]10' N. lat.. 74.90 79.00
CANARY ROCKFISH........................... ............................ 39.90 41.10
Chilipepper............................... South of 40[deg]10' N. lat.. 1,099.50 1,067.25
COWCOD.................................... South of 40[deg]10' N. lat.. 1.00 1.00
DARKBLOTCHED ROCKFISH..................... ............................ 266.70 278.41
Dover sole................................ ............................ 22,234.50 22,234.50
English sole.............................. ............................ 6,365.03 5,255.59
Lingcod................................... North of 40[deg]10' N. lat.. 1,222.57 1,151.68
Lingcod................................... South of 40[deg]10' N. lat.. 494.41 472.88
Longspine thornyhead...................... North of 34[deg]27' N. lat.. 1,859.85 1,811.40
Minor shelf rockfish complex.............. North of 40[deg]10' N. lat.. 508.00 508.00
Minor shelf rockfish complex.............. South of 40[deg]10' N. lat.. 81.00 81.00
Minor slope rockfish complex.............. North of 40[deg]10' N. lat.. 776.93 776.93
Minor slope rockfish complex.............. South of 40[deg]10' N. lat.. 376.11 378.63
Other flatfish complex.................... ............................ 4,189.61 4,189.61
Pacific cod............................... ............................ 1,125.29 1,125.29
PACIFIC OCEAN PERCH....................... North of 40[deg]10' N. lat.. 109.43 112.28
Pacific Whiting........................... ............................ 85,697 108,935
PETRALE SOLE.............................. ............................ 2,318.00 2,378.00
Sablefish................................. North of 36[deg] N. lat..... 1,828.00 1,988.00
Sablefish................................. South of 36[deg] N. lat..... 602.28 653.10
Shortspine thornyhead..................... North of 34[deg]27' N. lat.. 1,385.35 1,371.12
Shortspine thornyhead..................... South of 34[deg]27' N. lat.. 50.00 50.00
Splitnose rockfish........................ South of 40[deg]10' N. lat.. 1,518.10 1,575.10
Starry flounder........................... ............................ 751.50 755.50
Widow rockfish............................ ............................ 993.83 993.83
YELLOWEYE ROCKFISH........................ ............................ 1.00 1.00
Yellowtail rockfish....................... North of 40[deg]10' N. lat.. 2,635.33 2,638.85
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* * * * *
[FR Doc. 2014-10746 Filed 5-12-14; 8:45 am]
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