Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures for the 2013 Tribal and Non-Tribal Fisheries for Pacific Whiting, 26526-26539 [2013-10806]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 88 (Tuesday, May 7, 2013)]
[Rules and Regulations]
[Pages 26526-26539]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10806]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 130114034-3422-02]
RIN 0648-BC93


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; Biennial Specifications and 
Management Measures for the 2013 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 2013 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 establishes the tribal allocation of 63,205 
metric tons of Pacific whiting for 2013, and final allocations of 
Pacific whiting to the non-tribal fishery for 2013.

DATES: Effective May 7, 2013.

FOR FURTHER INFORMATION CONTACT: Kevin C. Duffy (Northwest Region, 
NMFS), phone: 206-526-4743, fax: 206-526-6736 and email: 
kevin.duffy@noaa.gov.

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 
Northwest Region Web site at https://www.nwr.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery 
Management Council's Web site at https://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 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 second year that the TAC for 
Pacific whiting is being 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

[[Page 26527]]

Commerce, in consultation with the Secretary of State, has the 
authority to accept or reject this recommendation.
    The Joint Technical Committee (JTC) met three times over the last 
six months to prepare the 2013 stock assessment for Pacific hake 
(whiting). The assessment presents a single base-case model using nine 
years of an acoustic survey biomass index as well as catches to 
estimate the scale of the current hake stock. The 2012 acoustic-trawl 
survey result was a relative biomass 1,380,000 mt, an increase of 2.5 
times the 2011 survey biomass of 521,000 mt, which is the lowest in the 
time series. The age-composition data from the aggregated fisheries 
(1975-2012) and the acoustic survey contribute to the assessment 
model's ability to resolve strong and weak cohorts. The survey and the 
fishery were dominated by age 2 (63.7 percent survey; 34.6 percent 
fishery) and 4 (16.1 percent survey; 34.5 percent) year old fish from 
the 2010 and 2008 year classes, with differences due to the different 
selectivity of young fish to the survey vs. the fishery. Both sources 
indicate a strong 2008 cohort in the 2011 and 2012 data (age 4 hake), 
and a strong 2010 cohort in the 2012 data (age 2 hake), which may 
partially explain the recent increase in the survey index.
    The median estimated female biomass is 1,503,000 mt at the 
beginning of 2013 and is expected to be stable to increasing through 
2015 due to an expected very large 2010 year class and the above 
average 2008 year class. This level of estimated spawning biomass has 
not been seen since 1993. The 2012 survey verified the strength of the 
2008 year class and finds that the 2010 year class seems even stronger, 
but there is uncertainty in the 2010 year class strength because it has 
only been observed once by the survey. Agreement between the most 
recent acoustic survey and commercial fishery age composition data as 
well as the most recent acoustic survey biomass index engenders greater 
confidence in the 2013 assessment estimates than if there was no survey 
data from 2012.
    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 2, compared to updated estimates as the 
cohort aged and more observations were available from the fishery and 
survey. Given that there is some uncertainty in the estimate of the 
2010 year class, and that the size of this year class has a strong 
effect on a projected 2013 catch, the JTC developed additional forecast 
decision tables reflecting a low, medium, and high range of recruitment 
for the 2010 year class. Using the more conservation-minded low-
recruitment state of nature, there is an equal probability that the 
spawning stock biomass in 2014 will be less or greater than the 
spawning biomass in 2013 with a catch between 300,000 and 350,000 mt. 
There is an equal probability that the spawning biomass will be below 
40 percent of unfished equilibrium spawning biomass with a 2013 catch 
near 400,000 mt.
    The JTC provided tables showing the outcome and probabilities of 
various events under different catch alternatives for 2013. For the 
base case median recruitment, the probability that the spawning stock 
biomass in 2014 remains above the 2013 level is 50 percent with a catch 
of 603,000 mt, the probability that the fishing intensity is above 
target in 2013 is 50 percent with a catch of 626,364 mt, and the 
probability that the predicted 2014 catch target is the same as a set 
value in 2013 is 50 percent for a set value of 696,000 mt in 2013. 
There is a less than 12 percent probability that the spawning stock 
biomass will drop below 40 percent in 2014 for all catch levels 
considered. This information indicates probabilities at projected catch 
levels that were significantly higher than the TAC levels recommended 
by the JMC, reinforcing the conservative nature of the proposed fishing 
regime in 2013.
    The two cohorts that will likely be supporting the 2013 fishery 
will be ages 3 and 5. Cohorts in this age range are near their peak 
biomass and potential maximum contribution to lifetime yield. Because 
of this, an argument could be made to fish the stock harder because the 
contribution to the population from these age classes will start to 
decline in future years. However, there is still considerable risk in 
fishing them too hard until the absolute size of these cohorts is 
verified, particularly the 2010 year class, which is still very young 
and thus not yet well characterized. A conservative estimate of the 
2010 year class strength (using only the lower 10 percent of the model 
estimated recruitment) reduces the strength from a median estimate of 
11.6 billion recruits (a near record size) to 6.9 billion recruits, 
which is near the size of the 1970 and 1999 recruitments.
    The Scientific Review Group (SRG) met in Vancouver, British 
Columbia, on February 19-22, 2013, to review the draft stock assessment 
document prepared by the JTC. The SRG endorsed the assessment and 
recommended that it be used for management advice. Along with the JTC, 
the SRG recommended (for consideration by the JMC) a range of 336,000--
626,000 mt as plausible harvest levels in 2013. The upper end would 
implement the default harvest policy in the Agreement and would allow 
some continued biomass growth into 2014 if the current assessment 
result is accurate. The lower level, using only the lower 10 percent of 
the model estimated recruitment, would still not exceed the harvest 
policy even if the 2010 year class is only 51 percent of its current 
estimate.
    At its March 18-19, 2013 meeting, the JMC reviewed the advice of 
the JTC, SRG, and AP, and agreed on a TAC recommendation for 
transmittal to the Parties. The JMC focused on the conservative 
estimate of the 2010 year class strength (using only the lower 10 
percent of the model estimated recruitment) and the SRG suggested 
target catch of 336,200 mt, based primarily on concerns that this lower 
bound may indeed reflect the true state of nature. This conservative 
approach resulted in a TAC recommendation of 336,200 mt, with 
adjustments upwards for uncaught Pacific whiting in 2012, as allowed by 
the Agreement, for a coastwide adjusted TAC of 365,112 mt for 2013. The 
TAC recommendation is expected to sustain the offshore hake/whiting 
resource in the event that the 2010 year class is not as large as 
expected, while still allowing a substantial increase in TAC compared 
to 2012.
    The recommendation for an adjusted United States TAC of 269,745 mt 
for 2013 (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 19, 2013. NMFS, under delegation of authority from the Secretary 
of Commerce, approved the TAC recommendation of 269,745 mt for U.S. 
fisheries on April 15, 2013.

Tribal Fishery Allocation

    This final rule establishes the tribal allocation of Pacific 
whiting for 2013. NMFS issued a proposed rule for the allocation and 
management of the 2013 tribal Pacific whiting fishery on March 5, 2013 
(78 FR 14259). 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 
50 CFR 660.50(d)(1). According to the formula found in that section, 
the tribal allocation is subtracted from the total U.S. Pacific whiting 
TAC and the

[[Page 26528]]

remainder, less a deduction of 2,500 mt for research and bycatch in 
non-groundfish fisheries (for 2013 only), is allocated to the non-
tribal sectors. 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 plus 16,000 mt, and projected a range of potential 
tribal allocations for 2013 based on a range of U.S. TACs over the last 
ten years, 2003 through 2012. This range of TACs is 148,200 mt (2003) 
to 290,903 mt (2011). The resulting range of potential tribal 
allocations is 41,935 mt to 66,906 mt.
    As described earlier in this preamble, the U.S. TAC for 2013 is 
269,745 mt. Applying the formula at 50 CFR 660.50(d)(1), NMFS 
calculated that the tribal allocation implemented by this final rule is 
63,205 mt (17.5 percent of the U.S. TAC or 47,205 mt, plus 16,000 mt). 
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 63,205 mt (23 percent of the 2013 U.S. TAC) 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 March 5, 2013 (78 FR 
14259) for two reasons related to timing and process. First, a 
recommendation on the coastwide TAC for Pacific whiting for 2013, under 
the terms of the Agreement with Canada, was not available until March 
19, 2013. This recommendation for a U.S. TAC was approved by NMFS, 
under delegation of authority from the Secretary of Commerce, on April 
15, 2013. Second, the non-tribal allocation is established after 
deductions from the U.S. TAC for the tribal allocation (63,205 mt) and 
set asides for research and incidental catch in non-groundfish 
fisheries (2,500 mt). The non-tribal allocation is therefore being 
finalized in this rule.
    The 2013 fishery harvest guideline (HG) for Pacific whiting is 
204,040 mt. This amount was determined by deducting from the total U.S. 
TAC of 269,745 mt, the 63,205 mt tribal allocation, along with 2,500 mt 
for research catch and bycatch in non-groundfish fisheries. Regulations 
at 50 CFR 660.55 (f)(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 
(69,373 mt for 2013), the mothership sector is allocated 24 percent 
(48,970 mt for 2013), and the shorebased sector is allocated 42 percent 
(85,697 mt for 2013). The fishery south of 42[deg] N. lat. may not take 
more than 4,284 mt (5 percent of the shorebased allocation) prior to 
the start of the primary Pacific whiting season north of 42[deg] N. 
lat.
    The 2013 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 1.b To Part 660, Subpart C-2013.

Comments and Responses

    On March 5, 2013, NMFS issued a proposed rule for the allocation 
and management of the 2013 tribal Pacific whiting fishery. The comment 
period on the proposed rule closed on April 4, 2013. During the comment 
period, NMFS received two letters of comment. The U.S. Department of 
Interior submitted a letter of ``no comment'' associated with their 
review of the proposed rule.
    A letter was received from a commercial fishing organization. In 
their letter, they state that given past performance in the tribal 
fishery, the lack of demonstrable fishery operations from the Quileute 
tribe, and the potential economic harm to the non-tribal fishery, the 
proposed tribal whiting set aside is too high. They state that the 
proposed tribal whiting set aside for 2013 is not justified by past 
fishery performance, and fails in striking an appropriate balance of 
the treaty rights of the tribes against the Agency's obligation to 
achieve optimum yield. They suggest that NMFS: Establish a realistic 
2013 tribal whiting set aside that is bolstered by fishery plans from 
each tribe; and aptly and effectively exercise its reapportionment 
authority.
    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. Although the allocation to the tribal fishery 
in 2013 is a higher allocation amount than 2012 (63,205 mt versus 
48,556 mt), the percent of the TAC allocated to the tribes in 2013 
represents approximately 23 percent of the U.S. TAC, versus 26 percent 
of the U.S. TAC in 2012.
    As the commenter has noted, the reapportionment process is 
available to NMFS to address the situation in which the tribes are 
unable to use their full allocation. NMFS will monitor both the tribal 
and non-tribal fishery during the season, and will remain in contact 
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 from 
the tribal 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 2013 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

[[Page 26529]]

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 State of Washington submitted a 
letter of concurrence on February 25, 2013. The State of Oregon did not 
respond and 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 2013 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 main primary Pacific whiting season, 
which begins on May 15, 2013, 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 2013 stock assessment 
for Pacific whiting was prepared in early 2013, as the new 2012 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, 
2013. 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 2013 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. It 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 made effective May 7, 2013.
    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: https://www.nwr.noaa.gov/fisheries/management/whiting/pacific_whiting.html.
    Rulemaking must comply with Executive Order (EO) 12866 and the 
Regulatory Flexibility Act (RFA). The Office of Management and Budget 
has determined that this final rule is not significant for purposes of 
Executive Order 12866.
    The NMFS Economic Guidelines that describe the RFA and EO 12866 can 
be found at https://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf
    The RFA can be found at https://www.archives.gov/federal-register/laws/regulatory-flexibility/
    Executive Order 12866 can be found at https://www.plainlanguage.gov/populartopics/regulations/eo12866.pdf
    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 March 5, 2013 78 FR 14259, with a comment period 
through April 4, 2013. 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 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 2013 harvest specifications for Pacific 
whiting and the allocation of Pacific whiting for the tribal whiting 
fishery. This rule establishes the initial 2013 Pacific whiting 
allocations for the tribal fishery and the non-tribal sectors (catcher/
processor, mothership, and shoreside), and the amount of Pacific 
whiting set

[[Page 26530]]

aside for research and incidental catch in other fisheries.
    In 2012, the total estimated catch of whiting by tribal and non-
tribal fishermen was 162,000 mt, or 87 percent of the U.S. TAC (186,037 
mt). There was a late fall reapportionment of 28,000 mt of Pacific 
whiting from the tribal to non-tribal sectors. The tribal harvest was 
less than 1,000 mt, approximately 3 percent of the final tribal 
allocation of 20,556 mt. In total, non-tribal sectors harvested 97 
percent of the final non-tribal allocation of 163,381 mt. This rule 
increases the U.S. TAC for 2013 to 269,745 mt, and the tribal 
allocation will increase to 63,205 mt. After setting aside 2,500 mt for 
research catch and bycatch in non-groundfish fisheries, the overall 
non-tribal allocation for 2013 is 204,040 mt. The non-tribal allocation 
is 28 percent higher than the 2012 non-tribal catch. In 2012, total 
Pacific whiting ex-vessel revenues earned by tribal and non-tribal 
fisheries reached about $50 million. If the 2013 TAC is entirely 
harvested, projected ex-vessel revenues would reach $83 million, based 
on 2012 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. The association also suggested that pre-season plans be 
required from the tribes. 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 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 within 
the long-term tribal treaty right to harvest. Applicable law requires 
NMFS to provide the tribes with the opportunity to harvest their treaty 
right. Should reapportionment in late fall 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. 
``If, 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 2013 fishery 
under the Agreement: This adjustment resulted in 7,552 mt being added 
to the Canadian share, for an adjusted Canadian TAC of 95,367 mt, and 
21,360 mt being added to the United States share, for an adjusted 
United States TAC of 269,745 mt. This results in a coastwide adjusted 
TAC of 365,112 mt for 2013.
    Under the RFA, the term ``small entities'' includes small 
businesses, small organizations, and small governmental jurisdictions. 
The Small Business Administration (SBA) has established size criteria 
for all major industry sectors in the United States, including fish 
harvesting and fish processing businesses. A business involved in fish 
harvesting is a small business if it is independently owned and 
operated and not dominant in its field of operation (including its 
affiliates) and if it has combined annual receipts not in excess of 
$4.0 million for all its affiliated operations worldwide. A seafood 
processor is a small business if it is independently owned and 
operated, not dominant in its field of operation, and employs 500 or 
fewer persons on a full time, part-time, temporary, or other basis, at 
all its affiliated operations worldwide. A business involved in both 
the harvesting and processing of seafood products is a small business 
if it meets the $4.0 million criterion for fish harvesting operations. 
A wholesale business servicing the fishing industry is a small business 
if it employs 100 or fewer persons on a full time, part time, 
temporary, or other basis, at all its affiliated operations worldwide. 
For marinas and charter/party boats, a small business is one with 
annual receipts not in excess of $7.0 million. The RFA defines small 
organizations as any nonprofit enterprise that is independently owned 
and operated and is not dominant in its field. The RFA defines small 
governmental jurisdictions as governments of cities, counties, towns, 
townships, villages, school districts, or special districts with 
populations of less than 50,000.
    This final rule affects how whiting is allocated to the following 
sectors/programs: Tribal, 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 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 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 commercial 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.
    The shorebased IFQ fishery is managed with individual fishing 
quotas for most groundfish species, including whiting. Annually, quota 
pounds (QP) are allocated from the shorebased sector allocation based 
on the individual quota shares (QS) of each QS owner. (QP is expressed 
as a weight and QS is expressed as a percent of the shorebased 
allocation for a given species or species group.). Quota pounds (QP) 
may be transferred from a QS account to a vessel account or from one 
vessel account to another vessel account. Vessel accounts are used to 
track how QP is harvested as QP is to cover catch (landings and 
discards) by limited entry trawl vessels of all IFQ species/species 
groups. Shorebased IFQ catch must be landed at authorized first 
receiver sites. The IFQ whiting quota shares (QS) were allocated to a 
mixture of limited entry permit holders and shorebased processors. One 
non-profit organization received quota share based on the ownership of 
multiple limited entry permits. The Mothership (MS) coop sector can 
consist of one or more coops and a non-coop subsector. For a MS coop to 
participate in the Pacific whiting fishery, it must be composed of MS 
catcher-vessel (MSCV) endorsed limited entry permit owners. Each 
permitted MS coop is authorized to harvest a quantity of Pacific 
whiting based on the sum of the catch history assignments for each 
member's MS/Catcher Vessel (MSCV) endorsed permit identified in the 
NMFS accepted coop

[[Page 26531]]

agreement for a given calendar year. Each MS/CV endorsed permit has an 
allocation of Pacific whiting catch based on its catch history in the 
fishery. The catch history assignment (CHA) is expressed as a 
percentage of Pacific whiting of the total MS sector allocation. 
Currently the MS sector is composed of only a single coop. The Catcher/
Processor (C/P) coop program is a limited access program that applies 
to vessels in the C/P sector of the Pacific whiting at-sea trawl 
fishery and is a single voluntary coop. Unlike the MS coop regulations 
where multiple coops can be formed around the catch history assignments 
of each coop's member's endorsed permit, the single C/P coop receives 
the total Pacific whiting allocation for the C/P sector. Only C/P 
endorsed limited entry permits can participate in this coop. Currently 
(February 2013), the Shorebased IFQ Program is composed of 138 QS 
permits/accounts, 142 vessel accounts, and 50 first receivers. The MS 
coop fishery is currently composed of a single coop, with six 
mothership processor permits, and 36 MS/CV endorsed permits with one 
permit having two catch history assignments endorsed to it. The C/P 
coop is composed of 10 catcher-processor permits owned by three 
companies. There are four tribes that can participate in the tribal 
whiting fishery. The current tribal fleet is composed of 5 trawlers 
that either deliver to a shoreside plant or to a contracted mothership.
    These regulations directly affect IFQ Quota share holders who 
determine which vessel accounts receive QP, holders of MS/CV endorsed 
permits who determine how many coops will participate in the fishery 
and how much fish each coop is to receive, and the CP coop which is 
made up of three companies that own the CP permits. As part of the 
permit application processes for the non-tribal fisheries, based on a 
review of the SBA size criteria, applicants are asked if they 
considered themselves a ``small'' business and to provide detailed 
ownership information. Although there are three non-tribal sectors, 
many companies participate in two or more of these sectors. All MS/CV 
participants are involved in the shorebased IFQ sector while two of the 
three CP 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 100 non-tribal entities 
directly affected by these regulations, 82 of which are considered to 
be ``small'' businesses. These regulations also directly affect tribal 
whiting fisheries. 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.
    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 2013 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 between 28 percent 
and 23 percent of the U.S. total allowable catch for 2013. 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 2013, which would be inconsistent with NMFS' 
responsibility to manage the fishery consistent with the tribes' treaty 
rights. Given that there are tribal requests for allocations in 2013, 
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 2012, 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.
    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

[[Page 26532]]

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 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.
    As Steller sea lions and humpback whales are also protected under 
the Marine Mammal Protection Act (MMPA), incidental take of these 
species from the groundfish fishery must be addressed under MMPA 
section 101(a)(5)(E). On February 27, 2012, NMFS published notice that 
the incidental taking of Steller sea lions in the West Coast groundfish 
fisheries is addressed in NMFS' December 29, 2010 Negligible Impact 
Determination and this fishery has been added to the list of fisheries 
authorized to take Steller sea lions (77 FR 11493). NMFS is currently 
developing MMPA authorization for the incidental take of humpback 
whales in the fishery.
    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

    Fisheries, Fishing, Indian Fisheries.

    Dated: May 2, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the 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 2013 is 63,205 mt.
* * * * *

0
3. Table 1a, to part 660, subpart C, is revised to read as follows:
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0
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:

[[Page 26539]]



                                          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  ..................
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. 2013-10806 Filed 5-6-13; 8:45 am]
BILLING CODE 3510-22-C