SUPPLEMENTARY INFORMATION:

Background

This proposed rule announces the adjusted coastwide whiting Total Allowable Catch (TAC) of 625,000 mt, the U.S. adjusted TAC of 461,750 mt, and proposes domestic 2023 Pacific whiting harvest specifications, including, the 2023 tribal allocation of 80,806 mt, announces the preliminary allocations for three non-tribal commercial whiting sectors, and ( printed page 20458) proposes set-asides for incidental mortality in research activities and the state-managed pink shrimp (non-groundfish) fishery. The tribal and non-tribal allocations for Pacific whiting, as well as set-asides, would be effective until December 31, 2023.

Pacific Whiting Agreement

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 management bodies to implement the terms of the Agreement, including the Joint Management Committee (JMC), which recommends the annual catch level for Pacific whiting.

In addition to the JMC, the Agreement establishes several other bilateral management bodies to set whiting catch levels: 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 TAC to the United States and 26.12 percent of the TAC to Canada. Based on recommendations from the JTC, SRG, and AP, the JMC determines the overall Pacific whiting TAC by March 25th of each year. NMFS, under the delegation of authority from the Secretary of Commerce, in consultation with the Secretary of State, has the authority to accept or reject this recommendation.

2023 Stock Assessment and Scientific Review

The JTC completed a stock assessment for Pacific whiting in February 2023 (see ADDRESSES ). The assessment was reviewed by the SRG during a 4 day meeting held in person and online on February 07-10, 2023 (see ADDRESSES for the report; Status of the Pacific Hake (whiting) stock in U.S. and Canadian waters in 2023). The SRG considered the 2023 assessment report and appendices to represent the best scientific information available for Pacific hake/whiting.

The 2023 assessment model uses the same structure as the 2022 stock assessment model. The model is fit to an acoustic survey index of abundance, an index of age-1 fish, annual commercial catch data, mean weight-at-age data, and age composition data from acoustic surveys and commercial fisheries.

Age-composition data provide information to estimate relative year-class strength. Updates to the data in the 2022 assessment include: fishery catch and age-composition data from 2022, weight-at-age data for 2022, and minor changes to pre-2022 data.

The median estimate of the 2023 relative spawning biomass (female spawning biomass at the start of 2023 divided by that at unfished equilibrium) is 104 percent, but is highly uncertain. The median relative spawning biomass has increased since 2021, due to the estimated above average 2020 cohort entering maturity. The large, but uncertain, size of the 2020 cohort is based on the 2021 age-1 index estimate and the 2022 fishery age-composition data.

The median estimate of female spawning biomass at the start of 2023 is 1,909,550 mt. This is 34 percent higher than the median estimate for the 2022 female spawning biomass of 1,423,665 mt.

The estimated probability that the spawning biomass at the start of 2023 is below the Agreement's F-40 percent default harvest rate (40 percent of unfished levels), is 1.9 percent, and the probability that relative fishing intensity exceeded the spawning potential ratio at 40 percent unfished levels in 2022 is 0.1 percent. The joint probability that the relative spawning stock biomass is both below 40 percent of unfished levels, and that fishing mortality is above the relative fishing intensity of the Agreement's F-40 percent default harvest rate is estimated to be 0.1 percent.

2023 Pacific Whiting Coastwide and U.S. TAC Recommendation

The AP and JMC met in Vancouver, British Columbia, Canada February 28-March 1, 2023, to develop advice on a 2023 coastwide TAC. The AP provided its 2023 TAC recommendation to the JMC on March 1, 2023. The JMC reviewed the advice of the JTC, the SRG, and the AP, and agreed on a TAC recommendation for transmittal to the United States and Canadian Governments.

The Agreement directs the JMC to base the catch limit recommendation on the default harvest rate unless scientific evidence demonstrates that a different rate is necessary to sustain the offshore Pacific whiting resource. After consideration of the 2023 stock assessment and other relevant scientific information, the JMC did not use the default harvest rate, and instead agreed on a more conservative approach. There were two primary reasons for choosing a TAC well below the level of F-40 percent. First, the JMC noted aging of the 2010, 2014, and 2016 year classes and wished to extend access to these stocks as long as possible, which a lower TAC would accomplish by lowering the rate of removal of these year-classes. Second, there is uncertainty regarding the current size of the apparent large 2020 year class because there has not yet been a post-recruitment observation of this cohort by an acoustic survey. The JMC recommended a moderate increase in the TAC, rather than a large increase up to the full F-40 percent harvest rate until a more certain estimate of the year class's size is available after one more year of fishing data, and conclusion of the 2023 acoustic survey. This conservative TAC-setting process, endorsed by the AP, resulted in a TAC that is less than what it would be using the default harvest rate under the Agreement and is consistent with Article II 5(b) of the Agreement.

An adjusted TAC is recommended when either country's catch is less than its TAC in the prior year, and the shortfall is carried over into following year. In 2022, both countries did not attain their respective TACs; the U.S. attainment for 2022 is detailed in the Initial Regulatory Flexibility Analysis included in this preamble. Under the Agreement, carryover adjustments cannot not exceed 15 percent of a party country's unadjusted for TAC for the year in which the shortfall occurred. For the 2023 whiting fishery, the JMC recommended a coastwide TAC of 543,250 mt prior to adjustment. Based on Article III(2) of the Agreement, the 73.88 percent U.S. share of the coastwide TAC is 401,353 mt. Consistent with Article II(5)(b) of the Agreement, a carryover of 60,397 mt was added to the U.S. share for an adjusted U.S. TAC of 461,750 mt. The 26.12 percent Canadian share of the coastwide TAC consistent with Article III(2) of the Agreement is 141,897 mt, and a carryover of 21,353 mt was added to the Canadian share, for an adjusted Canadian TAC of 163,250. The total coastwide adjusted TAC is 625,000 mt for 2023.

This recommendation is consistent with the best available scientific information, and provisions of the Agreement and the Whiting Act. The recommendation was transmitted via letter to the United States and Canadian Governments on March 01, 2023. NMFS, under delegation of authority from the Secretary of Commerce, approved the TAC recommendation of ( printed page 20459) 461,750 mt for U.S. fisheries on March 23, 2023.

Tribal Allocation

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 Fishery Management Plan (FMP) request allocations, set-asides, or regulations specific to the tribes during the Council's biennial harvest specifications and management 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).

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, they have not yet determined a long-term allocation. This rule proposes the 2023 tribal allocation of Pacific whiting. This allocation does not represent a long-term allocation and is not intended to set precedent for future allocations.

In exchanges between NMFS and the Treaty Tribes during September 2022, the Makah Tribe indicated their intent to participate in the tribal Pacific whiting fishery in 2023 and requested 17.5 percent of the U.S. TAC. The Quinault Indian Nation, Quileute Indian Tribe and Hoh Indian Tribe informed NMFS in September 2022 that they will not participate in the 2023 fishery. NMFS proposes a tribal allocation that accommodates the tribal request, specifically 17.5 percent of the U.S. TAC. The proposed 2023 adjusted U.S. TAC is 461,750 mt, and therefore the proposed 2023 tribal allocation is 80,806 mt. 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.

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 a set-aside of Pacific whiting to accommodate incidental mortality of the fish in research activities and the state-managed pink shrimp fishery based on estimates of scientific research catch and estimated bycatch mortality in non-groundfish fisheries. At its November 2022 meeting, the Council recommended an incidental mortality set-aside of 750 mt for 2023. This set-aside is unchanged from the 750 mt set-aside amount for incidental mortality in 2022. This rule proposes the Council's recommendations.

Non-Tribal Harvest Guidelines and Allocations

In addition to the tribal allocation, this proposed rule establishes the fishery harvest guideline (HG), also called the non-tribal allocation. The proposed 2023 fishery HG for Pacific whiting is 380,194 mt. This amount was determined by deducting the 80,806 mt tribal allocation and the 750 mt allocation for scientific research catch and fishing mortality in non-groundfish fisheries from the U.S. adjusted TAC of 461,750 mt. Federal regulations further allocate the fishery HG among the three non-tribal sectors of the Pacific whiting fishery: The catcher/processor (C/P) Co-op Program, the Mothership (MS) Co-op Program, and the Shorebased Individual Fishing Quota (IFQ) Program. The C/P Co-op Program is allocated 34 percent (129,265 mt for 2023), the MS Co-op Program is allocated 24 percent (91,246 mt for 2023), and the Shorebased IFQ Program is allocated 42 percent (159,681 mt for 2023). The fishery south of 42° N lat. may not take more than 7,984 mt (5 percent of the Shorebased IFQ Program allocation) prior to May 1, the start of the primary Pacific whiting season north of 42° N lat.

This proposed rule would be implemented under the statutory and regulatory authority of sections 304(b) and 305(d) of the Magnuson-Stevens Act, the Pacific Whiting Act of 2006, the regulations governing the groundfish fishery at 50 CFR 660.5-660.360, and other applicable laws. Additionally, with this proposed rule, NMFS would ensure that the fishery is managed 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. ( printed page 20460) United States v. Washington, 384 F. Supp. 313 (W.D. 1974).

Classification

NMFS notes that the public comment period for this proposed rule is 15 days. Finalizing the Pacific whiting harvest specifications close to the start of the Pacific whiting fishing season on May 1st provides the industry with more time to plan and execute the fishery and gives them earlier access to the finalized allocations of Pacific whiting. Given the considerably short timeframe between the JMC meeting in late February-early March and the start of the primary whiting season on May 1, NMFS has determined there is good cause for a 15-day comment period to best balance the interest in allowing the public adequate time to comment on the proposed measures while implementing the management measures, including finalizing the Pacific whiting allocations, in a timely manner. 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 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 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 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 660.50(d) further state that 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.

A range of potential total harvest levels for Pacific whiting have been considered under the Final Environmental Impact Statement for Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods thereafter (2015/16 FEIS) and in the Amendment 30 to the Pacific Coast Groundfish Fishery Management Plan, 2023-2024 Harvest Specifications, and Management Measures Environmental Assessment (EA) and Regulatory Impact Review (RIR) and is available from NMFS (see ADDRESSES ). The 2015/16 FEIS examined the harvest specifications and management measures for 2015-16 and 10 year projections for routinely adjusted harvest specifications and management measures. The 10 year projections were produced to evaluate the impacts of the ongoing implementation of harvest specifications and management measures and to evaluate the impacts of the routine adjustments that are the main component of each biennial cycle. The EA for the 2023-24 cycle tiers from the 2015/16 FEIS and focuses on the harvest specifications and management measures that were not within the scope of the 10 year projections in the 2015/16 FEIS.

An Initial Regulatory Flexibility Analysis (IRFA) was 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 follows. Copies of the IRFA are available from NMFS (see ADDRESSES ).

Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. For purposes of complying with the RFA, NMFS 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 (80 FR 81194, December 29, 2015). In addition, the Small Business Administration has established size criteria for other entities that may be affected by this proposed rule. 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. 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 13 CFR 121.201). For purposes of rulemaking, NMFS is also applying the seafood processor standard to C/Ps 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 affects how Pacific whiting is allocated to the following sectors/programs: Tribal, Shorebased IFQ Program Trawl Fishery, MS Co-op Program Whiting At-sea Trawl Fishery, and C/P Co-op Program Whiting At-sea Trawl Fishery. The amount of Pacific whiting allocated to these sectors is based on the U.S. TAC, which is developed and approved through the process set out in the Agreement and the Whiting Act.

We expect one tribal entity to fish for Pacific whiting in 2023. Tribes are not considered small entities for the purposes of RFA. Impacts to tribes are nevertheless considered in this analysis.

As of January 2023, the Shorebased IFQ Program is composed of 164 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 ( printed page 20461) coop. These co-ops are considered large entities both because they have participants that are large entities and because they 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 requests that limited entry permit holders self-report their size status. For 2023, all 10 C/P permits reported that 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 2022 NMFS reapportioned 40,000 mt of the original 70,463 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 2022 following the reapportionment were: Tribal 30,463 mt, C/P Co-op 126,287 mt; MS Co-op 89,144 mt; and Shorebased IFQ Program 156,002 mt.

The prices for Pacific whiting are largely determined by the world market because most of the Pacific whiting harvested in the United States 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 2022 U.S. non-tribal fishery had a Pacific whiting catch of approximately 291,337 mt, and the tribal fishery landed less than 11,100 mt.

Impacts to the U.S. non-tribal fishery are measured with an estimate of ex-vessel revenue. The proposed adjusted coastwide TAC of 625,000 mt would result in an adjusted U.S. TAC of 461,750 mt and, after deduction of the tribal allocation and the incidental catch set-aside, a U.S. non-tribal harvest guideline of 380,194 mt. Using the 2022 weighted-average non-tribal price per metric ton ( e.g., $233.5 per metric ton), the proposed TAC is estimated to result in an ex-vessel revenue of $88.8 million for the U.S. non-tribal fishing fleet.

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 2022 average ex-vessel price of Pacific whiting, which was $233.50 per mt. At that price, the proposed 2022 tribal allocation of 80,806.25 mt would have an ex-vessel value of $18.87 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

For the allocations to the non-tribal commercial sectors, the Pacific whiting tribal allocation, and set-asides for research and incidental mortality NMFS considered two alternatives: “No Action” and the “Proposed Action.”

For allocations to non-tribal commercial sectors, the no action alternative would be mean that NMFS would not implement allocations to the non-tribal sectors based on the JMC recommended U.S. TAC, which would not fulfill NMFS' responsibility to manage the U.S. fishery. This is contrary to the Whiting Act and Agreement, which requires sustainable management of the Pacific whiting resource, therefore the no action alternative for allocations to non-tribal commercial sectors received no further consideration.

For set-asides for research and incidental mortality, the no action alternative would mean that NMFS would not implement the set-aside amount of 750 mt recommended by the Council. Not implementing set-asides of the US whiting TAC would mean incidental mortality of the fish in research activities and non-groundfish fisheries would not be accommodated. This would be inconsistent with the Council's recommendation, the Pacific Coast Groundfish Fishery Management Plan, the regulations setting the framework governing the groundfish fishery, and NMFS' responsibility to manage the fishery. Therefore, the no action alternative for set-asides received no further consideration.

NMFS did not consider a broader range of alternatives to the proposed tribal allocation because the tribal allocation is a percentage of the U.S. TAC and 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 80,806.25 mt for 2023. 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 2023, 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 2023, this no-action alternative for allocation to the ( printed page 20462) triable sector 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.

Fisheries, Fishing, Indian fisheries.

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

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.

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

3. Revise Table 1a to part 660, subpart C-2023, to read as follows:

4. Revise Table 1b to part 660, subpart C—2023, to read as follows:

5. In § 660.140, revise paragraph (d)(1)(ii)(D) to read as follows:

88 FR 20457