[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]



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 

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.


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: kevin.duffy@noaa.gov.


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 

[[Page 27199]]

Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: 


    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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

[[Page 27204]]

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:


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.

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.
* * * * *

3. Table 2a, to part 660, subpart C, is revised to read as follows:

[[Page 27205]]


[[Page 27206]]


[[Page 27207]]


[[Page 27208]]


[[Page 27209]]


[[Page 27210]]


[[Page 27211]]

4. In Sec.  660.140, paragraph (d)(1)(ii)(D) is revised to read as 

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

* * * * *
[FR Doc. 2014-10746 Filed 5-12-14; 8:45 am]