[Federal Register Volume 86, Number 29 (Tuesday, February 16, 2021)]
[Proposed Rules]
[Pages 9473-9476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02814]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / 
Proposed Rules  

[[Page 9473]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 210205-0013]
RIN 0648-BK25


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2021 Harvest Specifications for 
Pacific Whiting, and 2021 Pacific Whiting Tribal Allocation

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues the proposed rule for the 2021 Pacific whiting 
fishery under the authority of the Pacific Coast Groundfish Fishery 
Management Plan, the Magnuson-Stevens Fishery Conservation and 
Management Act, the Pacific Whiting Act of 2006, and other applicable 
laws. This proposed rule would allocate 17.5 percent of the U.S. total 
allowable catch of Pacific whiting for 2021 to Pacific Coast Indian 
tribes that have a treaty right to harvest groundfish, and implement 
set-asides for Pacific whiting research and incidental mortality in 
other fisheries. The proposed measures are intended to help prevent 
overfishing, achieve optimum yield, and ensure that management measures 
are based on the best scientific information available.

DATES: Comments on this proposed rule must be received no later than 
March 18, 2021.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2021-0002 by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2021-0002, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Barry Thom, c/o Stacey Miller, Sustainable Fisheries 
Division, West Coast Region, NMFS, 1201 NE Lloyd Blvd. Suite 1100, 
Portland, OR 97232.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

Electronic Access

    This proposed rule is accessible via the internet at the Office of 
the Federal Register website at https://www.federalregister.gov. 
Background information and documents are available at the NMFS website 
at https://www.fisheries.noaa.gov and at the Pacific Fishery Management 
Council's website at http://www.pcouncil.org/.

FOR FURTHER INFORMATION CONTACT: Stacey Miller, phone: 503-231-6290, 
and email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    This rule proposes establishing the 2021 set-asides for research 
and incidental mortality of Pacific whiting as recommended by the 
Pacific Fishery Management Council (Council) and the 2021 tribal 
allocation for the Pacific whiting fishery. The allocations for Pacific 
whiting would be effective until December 31, 2021.
    The transboundary stock of Pacific whiting is managed through the 
Agreement Between the Government of the United States of America and 
the Government of Canada on Pacific Hake/Whiting of 2003 (Agreement). 
The Agreement establishes bilateral bodies to implement the terms of 
the Agreement. The bilateral bodies include: The Joint Management 
Committee (JMC), which recommends the annual catch level for Pacific 
whiting; the Joint Technical Committee (JTC), which conducts the 
Pacific whiting 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 establishes a default harvest policy of F-40 percent, 
which means a fishing mortality rate that would reduce the spawning 
biomass to 40 percent of the estimated unfished level. The Agreement 
also allocates 73.88 percent of the Pacific whiting total allowable 
catch (TAC) to the United States and 26.12 percent of the TAC to 
Canada. Based on recommendations from the Treaty's JTC, SRG, and AP, 
the JMC determines the overall Pacific whiting TAC by March 25th of 
each year, which is subsequently approved by NMFS, under the delegation 
of authority from the Secretary of Commerce.
    The final rule will announce the total 2021 U.S. TAC and establish 
the 2021 tribal allocation and non-tribal fishery harvest guideline 
(HG), also called the non-tribal allocation. To determine the HG, the 
2021 tribal allocation and set-aside for research and incidental 
mortality are deducted from the total U.S. TAC. The HG is then 
allocated among the three non-tribal sectors of the Pacific whiting 
fishery: The catcher/processor (C/P) Coop Program, the Mothership (MS) 
Coop Program and the Shorebased Individual Fishing Quota (IFQ) Program. 
The HG is not included in this proposed rule due to the timing of the 
SRG and JMC meetings when the 2021 overall TAC will be determined by 
the JMC, and subsequently approved by the Secretary of Commerce, with 
the concurrence of the Department of State.

Tribal Allocations

    The regulations at 50 CFR 660.50(d) identify the procedures for 
implementing the treaty rights that Pacific Coast treaty Indian tribes 
have to harvest groundfish in their usual and accustomed fishing areas 
in U.S. waters. Tribes with treaty fishing rights in the area covered 
by the Pacific Coast Groundfish FMP request allocations, set-asides, or 
regulations specific to the tribes during the Council's biennial 
harvest specifications and management

[[Page 9474]]

measures process. The regulations state that the Secretary will develop 
tribal allocations and regulations in consultation with the affected 
tribe(s) and, insofar as possible, with tribal consensus.
    NMFS allocates a portion of the U.S. TAC of Pacific whiting to the 
tribal fishery, following the process established in 50 CFR 660.50(d). 
The tribal allocation is subtracted from the U.S. Pacific whiting TAC 
before allocation to the non-tribal sectors.
    Four Washington coastal treaty Indian tribes including the Makah 
Indian Tribe, Quileute Indian Tribe, Quinault Indian Nation, and the 
Hoh Indian Tribe (collectively, the ``Treaty Tribes''), can participate 
in the tribal Pacific whiting fishery. Tribal allocations of Pacific 
whiting have been based on discussions with the Treaty Tribes regarding 
their intent for those fishing years. The Hoh Tribe has not expressed 
an interest in participating in the Pacific whiting fishery to date. 
The Quileute Tribe and Quinault Indian Nation have expressed interest 
in beginning to participate in the Pacific whiting fishery at a future 
date. To date, only the Makah Tribe has prosecuted a tribal fishery for 
Pacific whiting, and has harvested Pacific whiting since 1996 using 
midwater trawl gear.
    Table 1 below provides a recent history of U.S. TACs and annual 
tribal allocation in metric tons (mt).

   Table 1--U.S. Total Allowable Catch and Annual Tribal Allocation in
                               Metric Tons
                                  [mt]
------------------------------------------------------------------------
         Year                U.S. TAC \1\           Tribal allocation
------------------------------------------------------------------------
2010.................  193,935 mt..............  49,939 mt.
2011.................  290,903 mt..............  66,908 mt.
2012.................  186,037 mt..............  48,556 mt.
2013.................  269,745 mt..............  63,205 mt.
2014.................  316,206 mt..............  55,336 mt.
2015.................  325,072 mt..............  56,888 mt.
2016.................  367,553 mt..............  64,322 mt.
2017.................  441,433 mt..............  77,251 mt.
2018.................  441,433 mt..............  77,251 mt.
2019.................  441,433 mt..............  77,251 mt.
2020.................  424,810 mt..............  74,342 mt.
------------------------------------------------------------------------
\1\ Beginning in 2012, the United States started using the term Total
  Allowable Catch, or TAC, based on the Agreement between the Government
  of the United States of America and the Government of Canada on
  Pacific Hake/Whiting. Prior to 2012, the terms Optimal Yield (OY) and
  Annual Catch Limit (ACL) were used.

    In 2009, NMFS, the states of Washington and Oregon, and the Treaty 
Tribes started a process to determine the long-term tribal allocation 
for Pacific whiting. However, these groups have not yet determined a 
long-term allocation. In order to ensure Treaty Tribes continue to 
receive allocations, this rule proposes the 2021 tribal allocation of 
Pacific whiting. This allocation is not intended to set precedent for 
future allocations.
    In exchanges between NMFS and the Treaty Tribes during November and 
December 2020, the Makah Tribe indicated their intent to participate in 
the tribal Pacific whiting fishery in 2021 and requested 17.5 percent 
of the U.S. TAC. The Quinault Indian Nation, Quileute Indian Tribe and 
Hoh Indian Tribe informed NMFS in December 2020 that they will not 
participate in the 2021 fishery. NMFS will contact the Tribes during 
the proposed rule comment period to refine the 2021 allocation before 
allocating the final U.S. TAC between the tribal and non-tribal whiting 
fisheries. NMFS proposes a tribal allocation that accommodates the 
tribal request, specifically 17.5 percent of the U.S. TAC. NMFS has 
determined that the current scientific information regarding the 
distribution and abundance of the coastal Pacific whiting stock 
indicates the 17.5 percent is within the range of the tribal treaty 
right to Pacific whiting.
    The JMC is anticipated to recommend the overall and corresponding 
U.S./Canada TACs no later than March 25, 2021. The U.S. TAC is 73.88 
percent of the overall TAC. Until this TAC is set, NMFS cannot propose 
a specific amount for the tribal allocation. The Pacific whiting 
fishery begins on May 15, and we expect to publish the final rule to 
set Pacific whiting specifications for 2021 by early May. Therefore, to 
allow for public input on the tribal allocation, NMFS is issuing this 
proposed rule without the final 2021 TAC. However, to provide a basis 
for public input, NMFS is describing a range of potential tribal 
allocations in this proposed rule by applying the proposed tribal 
allocation to a range of potential TACs derived from past harvest 
levels.
    In order to project a range of potential tribal allocations for 
2021, we applied the proposed tribal allocation of 17.5 percent to the 
range of U.S. TACs over the last 10 years, 2011 through 2020 (plus or 
minus 25 percent to capture variability in stock abundance). The range 
of U.S. TACs in that time period was 186,037 mt (2012) to 441,433 mt 
(2017, 2018 and 2019). Applying the 25 percent variability results in a 
range of potential TACs of 139,527 mt to 551,791 mt for 2021. Using the 
proposed tribal allocation of 17.5 percent, the potential range of the 
tribal allocations for 2021 would be between 24,417 mt; and 96,563 mt.

Non-Tribal Research and Bycatch Set-Asides

    The U.S. non-tribal whiting fishery is managed under the Council's 
Pacific Coast Groundfish FMP. Each year, the Council recommends the 
amount of Pacific whiting to accommodate incidental mortality of 
Pacific whiting in research activities and non-groundfish fisheries 
based on estimates of scientific research catch and estimated bycatch 
mortality in non-groundfish fisheries. At its November 2020 meeting, 
the Council recommended an incidental mortality set-aside of 750 mt for 
2021. This is a reduction of the amount set-aside for research and 
incidental mortality from 1,500 mt in 2020. The 750 mt recommendation, 
however, reflects the recent 3 year average mortality that has declined 
from 942 mt in 2014-2016 to 216 mt in 2017-2019. This rule proposes the 
Council's recommendations.
    This proposed rule would be implemented under the statutory and 
regulatory authority of section 304(b) and 305(d) of the Magnuson-
Stevens Act, and the Pacific Whiting Act of 2006. With this proposed 
rule, NMFS, acting on behalf of the Secretary, would ensure that the 
FMP is implemented in a manner consistent with treaty rights of four 
Treaty Tribes to fish in their ``usual and accustomed grounds and 
stations'' in common with non-tribal citizens. United States v. 
Washington, 384 F. Supp. 313 (W.D. 1974).

Classification

    Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens 
Act, the NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the Pacific Coast Groundfish FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment. In making its 
final determination, NMFS will take into account the complete record, 
including the data, views, and comments received during the comment 
period.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the Pacific Coast Groundfish FMP. Under the 
Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members 
of the Pacific Council must be a representative of an Indian tribe with 
federally recognized fishing rights from the area of the Council's 
jurisdiction. In addition, regulations implementing the Pacific

[[Page 9475]]

Coast Groundfish FMP establish a procedure by which the tribes with 
treaty fishing rights in the area covered by the Pacific Coast 
Groundfish FMP request new allocations or regulations specific to the 
tribes, in writing, before the first of the two meetings at which the 
Council considers groundfish management measures. The regulations at 50 
CFR 660.324(d) further state, ``the Secretary will develop tribal 
allocations and regulations under this paragraph in consultation with 
the affected tribe(s) and, insofar as possible, with tribal 
consensus.'' The tribal management measures in this proposed rule have 
been developed following these procedures.
    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    An Initial Regulatory Flexibility Analyses (IRFA) were prepared for 
this action, as required by section 603 of the Regulatory Flexibility 
Act (RFA). The IRFA describes the economic impact this proposed rule, 
if adopted, would have on small entities. A description of the action, 
why it is being considered, and the legal basis for this action is 
contained in the SUMMARY section and at the beginning of the 
SUPPLEMENTARY INFORMATION section of the preamble. A summary of the 
IRFA follow. Copies of the IRFAs are available from NMFS (See 
ADDRESSES).
    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 
entities involved in the fishing industry that qualify as small 
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 $11 million for all its affiliated 
operations worldwide (see 80 FR 81194, December 29, 2015). 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 now defined as one with 
annual receipts, not in excess of $7.5 million. 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. A small organization is any 
nonprofit enterprise that is independently owned and operated and is 
not dominant in its field. Small governmental jurisdictions such as 
governments of cities, counties, towns, townships, villages, school 
districts, or special districts are considered small jurisdictions if 
their populations are less than 50,000. Effective February 26, 2016, a 
seafood processor is a small business if it is independently owned and 
operated, not dominant in its field of operation, and employs 750 or 
fewer persons on a full time, part time, temporary, or other basis, at 
all its affiliated operations worldwide (See NAICS 311710 at 81 FR 
4469; January 26, 2016). For purposes of rulemaking, NMFS is also 
applying the seafood processor standard to catcher processors because 
whiting C/Ps earn the majority of the revenue from processed seafood 
product.

Description and Estimate of the Number of Small Entities to Which the 
Rule Applies, and Estimate of Economic Impacts by Entity Size and 
Industry

    This proposed rule would affect how Pacific whiting is allocated to 
the following sectors/programs: Tribal, Shorebased IFQ Program Trawl 
Fishery, MS Coop Program Whiting At-sea Trawl Fishery, and C/P Coop 
Program Whiting At-sea Trawl Fishery. The amount of Pacific whiting 
allocated to these sectors is based on the U.S. TAC.
    We expect one tribal entity to fish for Pacific whiting in 2021. 
Tribes are not considered small entities for the purposes of RFA. 
Impacts to tribes are nevertheless considered in this analysis. As of 
January 2021, the Shorebased IFQ Program is composed of 166 Quota Share 
permits/accounts (134 of which were allocated whiting quota pounds), 
and 35 first receivers, one of which is designated as whiting-only 
receivers and 11 that may receive both whiting and non-whiting. These 
regulations also directly affect participants in the MS Co-op Program, 
a general term to describe the limited access program that applies to 
eligible harvesters and processors in the MS sector of the Pacific 
whiting at-sea trawl fishery. This program consists of six MS processor 
permits, and a catcher vessel fleet currently composed of a single co-
op, with 34 Mothership/Catcher Vessel (MS/CV) endorsed permits (with 
three permits each having two catch history assignments). These 
regulations also directly affect the C/P Co-op Program, composed of 10 
C/P endorsed permits owned by three companies that have formed a single 
co-op. These co-ops are considered large entities from several 
perspectives; they have participants that are large entities, and have 
in total more than 750 employees worldwide including affiliates. 
Although there are three non-tribal sectors, many companies participate 
in two sectors and some participate in all three sectors. As part of 
the permit application processes for the non-tribal fisheries, based on 
a review of the Small Business Administration size criteria, permit 
applicants are asked if they considered themselves a ``small'' 
business, and they are asked to provide detailed ownership information. 
Data on employment worldwide, including affiliates, are not available 
for these companies, which generally operate in Alaska as well as the 
West Coast and may have operations in other countries as well. NMFS has 
limited entry permit holders self-report size status. For 2021, all 10 
CP permits reported they are not small businesses, as did 8 mothership 
catcher vessels. There is substantial, but not complete overlap between 
permit ownership and vessel ownership so there may be a small number of 
additional small entity vessel owners who will be impacted by this 
rule. After accounting for cross participation, multiple Quota Share 
account holders, and affiliation through ownership, NMFS estimates that 
there are 103 non-tribal entities directly affected by these proposed 
regulations, 89 of which are considered ``small'' businesses.
    This rule will allocate Pacific whiting between tribal and non-
tribal harvesters (a mixture of small and large businesses). Tribal 
fisheries consist of a mixture of fishing activities that are similar 
to the activities that non-tribal fisheries undertake. Tribal harvests 
may be delivered to both shoreside plants and motherships for 
processing. These processing facilities also process fish harvested by 
non-tribal fisheries. The effect of the tribal allocation on non-tribal 
fisheries will depend on the level of tribal harvests relative to their 
allocation and the reapportionment process. If the tribes do not 
harvest their entire allocation, there are opportunities during the 
year to reapportion unharvested tribal amounts to the non-tribal 
fleets. For example, in 2020 NMFS reapportioned 40,000 mt of the 
original 74,342 mt tribal allocation. This reapportionment was based on 
conversations with the tribes and the best information available at the 
time, which indicated that this amount would not limit tribal harvest 
opportunities for the remainder of the year. The reapportioning process 
allows unharvested tribal allocations of Pacific whiting to be fished 
by the non-tribal fleets, benefitting both large and small entities. 
The revised Pacific whiting allocations for 2020 following the

[[Page 9476]]

reapportionment were: Tribal 34,342 mt, C/P Co-op 132,249 mt; MS Co-op 
93,352 mt; and Shorebased IFQ Program 163,367 mt.
    The prices for Pacific whiting are largely determined by the world 
market because most of the Pacific whiting harvested in the U.S. is 
exported. The U.S. Pacific whiting TAC is highly variable, as have 
subsequent harvests and ex-vessel revenues. For the years 2016 to 2020, 
the total Pacific whiting fishery (tribal and non-tribal) averaged 
harvests of approximately 303,782 mt annually. The 2020 U.S. non-tribal 
fishery had a Pacific whiting catch of approximately 287,400 mt, and 
the tribal fishery landed less than 200 mt.
    Impacts to tribal catcher vessels who elect to participate in the 
tribal fishery are measured with an estimate of ex-vessel revenue. In 
lieu of more complete information on tribal deliveries, total ex-vessel 
revenue is estimated with the 2020 average shoreside ex-vessel price of 
Pacific whiting, which was $154 per mt. At that price, the proposed 
2020 tribal allocation (potentially 24,417 mt--96,563 mt) would have an 
ex-vessel value between $3.8 million and $14.9 million.

A Description of Any Significant Alternatives to the Proposed Rule That 
Accomplish the Stated Objectives of Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities

    NMFS considered two alternatives for the Pacific whiting action: 
The ``No Action'' and the ``Proposed Action.'' 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 Pacific whiting. 
Under the Proposed Action alternative, NMFS proposes to set the tribal 
allocation percentage at 17.5 percent, as requested by the Tribes. This 
would yield a tribal allocation of between 24,417 mt and 96,563 mt for 
2021. Consideration of a percentage lower than the tribal request of 
17.5 percent 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. A higher percentage would 
arguably also be within the scope of the treaty right. However, a 
higher percentage would unnecessarily limit the non-tribal fishery.
    Under the no action alternative, NMFS would not make an allocation 
to the tribal sector. This alternative was considered, but the 
regulatory framework provides for a tribal allocation on an annual 
basis only. Therefore, the no action alternative would result in no 
allocation of Pacific whiting to the tribal sector in 2021, 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 allocation in 2021, this alternative received no further 
consideration.

Regulatory Flexibility Act Determination of No Significant Impact

    NMFS determined this proposed rule would not adversely affect small 
entities. The reapportioning process allows unharvested tribal 
allocations of Pacific whiting, fished by small entities, to be fished 
by the non-tribal fleets, benefitting both large and small entities.
    NMFS has prepared an IRFA and is requesting comments on this 
conclusion. See ADDRESSES.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: February 8, 2021.
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 
proposed to be 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., 16 U.S.C. 773 et seq., and 
16 U.S.C. 7001 et seq.

0
2. In Sec.  660.50, revise paragraph (f)(4) to read as follows:


Sec.  660.50   Pacific Coast treaty Indian fisheries.

* * * * *
    (f) * * *
    (4) Pacific whiting. The tribal allocation for 2021 will be 17.5 
percent of the U.S. TAC.
* * * * *
[FR Doc. 2021-02814 Filed 2-12-21; 8:45 am]
BILLING CODE 3510-22-P