Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2020 Harvest Specifications for Pacific Whiting, Cowcod and Shortbelly Rockfish and 2020 Pacific Whiting Tribal Allocation

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to establish 2020 harvest specifications and management measures for Pacific whiting, shortbelly rockfish, and cowcod caught in the U.S. Exclusive Economic Zone off the coasts of Washington, Oregon, and California consistent with the Magnuson-Stevens Fishery Conservation and Management Act, the Pacific Whiting Act of 2006, and other applicable laws. For Pacific whiting, this rule establishes the 2020 adjusted U.S. Total Allowable Catch level, tribal and non-tribal allocations, and research and bycatch set-asides. This final rule also adjusts the 2020 harvest specifications for shortbelly rockfish and cowcod. The catch limits in this rule are intended to ensure the long-term sustainability of the Pacific whiting, shortbelly rockfish, and cowcod stocks.

DATES:

Effective June 18, 2020.

ADDRESSES:

This final rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents including an integrated analysis for this action (Analysis), which addresses the statutory requirements of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the National Environmental Policy Act, Presidential Executive Order 12866, and the Regulatory Flexibility Act are available at the NMFS website at https://www.fisheries.noaa.gov/action/2020-harvest-specifications-pacific-whiting-cowcod-and-shortbelly-rockfish-and-2020-pacific and at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.

The final environmental impact statement regarding Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter, and the Final Environmental Assessment for Pacific Coast Groundfish Fishery 2019-20 Harvest Specifications, Yelloweye Rebuilding Plan Revisions, and Management Measures, are available on the NMFS West Coast Region website at: www.westcoast.fisheries.noaa.gov/publications/nepa/groundfish/groundfish_nepa_documents.html.

FOR FURTHER INFORMATION CONTACT:

Stacey Miller, phone: 503-231-6290, and email: Stacey.Miller@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

This final rule includes actions for the Pacific whiting tribal and non-tribal fisheries, shortbelly rockfish, and cowcod. These actions are combined into one final rule because they all relate to establishing catch limits and management measures for Pacific Coast groundfish stocks in 2020. This rule announces the 2020 Pacific whiting coastwide Total Allowable Catch (TAC), establishes the Pacific whiting U.S. TAC based on the coastwide TAC, tribal allocation, allocations for three commercial whiting sectors, and set-asides for research and incidental mortality of Pacific whiting as recommended by the Pacific Fishery Management Council (Council); increases the 2020 annual catch limit (ACL) for shortbelly rockfish; and eliminates the 2020 annual catch target (ACT) and reduces the research set-aside for cowcod. The allocations for Pacific whiting are effective until December 31, 2020. The adjusted catch limits for cowcod and shortbelly supersede those put in place for 2020 through the 2019-2020 Pacific Coast Groundfish Biennial Harvest Specifications and Management Measures (83 FR 63970; December 12, 2018), and are being analyzed as part of the 2021-2022 Pacific Coast Groundfish Biennial Harvest Specifications and Management Measures, which are anticipated to be effective on January 1, 2021. Additional background information on each of the measures included in this final rule are included in the proposed rule, published on April 17, 2020 (85 FR 21372), and is not repeated here.

Pacific Whiting

2020 Pacific Whiting Harvest Specifications, Tribal Allocation and Non-Tribal Allocation

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, Nov. 21, 2003, T.I.A.S. 08-625 (Agreement). NMFS issued a proposed rule on April 17, 2020 (85 FR 21372) that describes the Agreement, including the establishment of F-40 percent default harvest rate, explicit allocation of Pacific whiting coastwide TAC to the U.S. (73.88 percent) and Canada (26.12 percent), the bilateral bodies to implement the terms of the Agreement, and the process used to determine the coastwide TAC.

The 2020 Joint Management Committee (JMC) and Advisory Panel (AP) met March 11-13, 2020, via the internet, but did not reach a bilateral agreement on the coastwide TAC. The Agreement does not specify a procedure for when the JMC does not agree on a coastwide TAC. However, the 2006 Pacific Whiting Act (16 U.S.C. 7006(c)) identifies procedures for when the JMC does not recommend a final TAC. The Pacific Whiting Act states that NMFS (as delegated by the Secretary of Commerce) should establish the Pacific whiting TAC, taking into account recommendations from the Pacific whiting treaty advisory bodies, and Council. The Pacific Whiting Act requires NMFS to base the TAC decision on the best scientific information available, and use the default harvest rate unless scientific information indicates a different rate is necessary to sustain the Pacific whiting resource. The Pacific Whiting Act also requires NMFS to establish the U.S. share of the TAC based on the U.S./Canada percentage split and adjustments specified in the Agreement. Finally, the Pacific Whiting Act requires NMFS to make the necessary adjustments to the TAC specified in the Agreement (Paragraph 5 of Article II). The Agreement (Paragraph 5 of Article II) requires adjustments to the coastwide TAC to account for overages if either U.S. or Canadian catch in the previous year exceeded its individual TAC, or carryovers, if U.S. or Canadian catch was less than its individual TAC in the previous year. Both the U.S. and Canada harvested less than their individual TACs in 2019, and therefore carryover is applied to the 2020 individual TACs.

Taking into account the percentage shares for each country (26.12 percent for Canada and 73.88 percent for the U.S.) and the adjustments for uncaught fish, as required by the Pacific Whiting Act, this final rule announces a final adjusted coastwide TAC of 575,000 metric tons (mt) and a final adjusted TAC for the U.S. of 424,810 mt (367,202 mt + 57,608 mt carryover adjustment). Following the Act's criteria, NMFS analyzed a range of alternatives in the proposed rule (85 FR 21372; April 17, 2020) and determined a final adjusted coastwide TAC of 575,000 mt maintains the sustainability of the Pacific whiting stock and balances the economic needs of coastal communities. This TAC is well below the default level of F-40 percent and is supported by the recommendations from the JMC and its advisory bodies, and is consistent with the best available scientific information, provisions of the Agreement, and the Whiting Act.

Tribal Allocations

This final rule establishes the tribal allocation of Pacific whiting for 2020 as described in the proposed rule (85 FR 21372; April 17, 2020). Since 1996, NMFS has been allocating a portion of the U.S. TAC of Pacific whiting to the tribal fishery. Regulations for the Pacific Coast Groundfish Fishery Management Plan (FMP) specify that the tribal allocation is subtracted from the total U.S. Pacific whiting TAC. The tribal Pacific whiting fishery is managed separately from the non-tribal Pacific whiting fishery and is not governed by limited entry or open access regulations or allocations. NMFS is establishing the 2020 tribal allocation as 74,342 mt (17.5 percent of the U.S. TAC) in this final rule. In 2009, NMFS, the states of Washington and Oregon, and the tribes with treaty rights to harvest Pacific whiting started a process to determine the long-term tribal allocation for Pacific whiting; however, no long-term allocation has been determined. While new scientific information or discussions with the relevant parties may impact that decision, the best available scientific information to date suggests that 74,342 mt is within the likely range of potential treaty right amounts. As with prior tribal Pacific whiting allocations, this final rule is not intended to establish precedent for future Pacific whiting seasons, or for the determination of the total amount of Pacific whiting to which the Tribes are entitled under their treaty right. Rather, this rule adopts an interim allocation. The long-term tribal treaty amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal tribes and the states of Washington and Oregon.

Harvest Guidelines and Allocations

This final rule also establishes the fishery harvest guideline (HG), also called the non-tribal allocation, as described in the proposed rule published on April 17, 2020 (85 FR 21372). The 2020 fishery HG for Pacific whiting is 348,968 mt. This amount was determined by deducting the 74,342 mt tribal allocation and the 1,500 mt allocation for scientific research catch and fishing mortality in non-groundfish fisheries from the total U.S. TAC of 424,810 mt. The Council recommends the research and bycatch set-aside on an annual basis, based on estimates of scientific research catch and estimated bycatch mortality in non-groundfish fisheries. The regulations further allocate the fishery HG 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 C/P Coop Program is allocated 34 percent (118,649 mt for 2020), the MS Coop Program is allocated 24 percent (83,752 mt for 2020), and the Shorebased IFQ Program is allocated 42 percent (146,567 mt for 2020). The fishery south of 42° N lat. may not take more than 7,328 mt (5 percent of the Shorebased IFQ Program allocation) prior to May 15, the start of the primary Pacific whiting season north of 42° N lat.

The environmental assessment for the 2019-2020 harvest specifications rule (see ADDRESSES) analyzed a range of TAC alternatives for 2020, and the final 2020 TAC falls within this analyzed range. In addition, via the 2019-2020 harvest specifications rulemaking process, the public had an opportunity to comment on the 2019-2020 TACs for Pacific whiting, along with all other species in the groundfish FMP with catch limits set through that action. NMFS follows this process because, unlike for all other groundfish species, the TAC for Pacific whiting is typically decided in a highly abbreviated annual process from February through April of every year, and the normal rulemaking process would not allow for the fishery to open with the new TAC on the annual season opening date of May 15.

Shortbelly Rockfish (Sebastes jordani)

This final rule implements the Council recommendation from its November 2019 meeting, to increase the 2020 ACL for shortbelly rockfish to 3,000 mt. The remaining shortbelly rockfish catch limits for 2020, including the OFL and ABC, are unchanged from those implemented in the 2019-2020 Pacific Coast Groundfish Biennial Harvest Specifications (83 FR 63970; December 12, 2018). The changes are summarized in Table 2 below.

Shortbelly rockfish (Sebastes jordani) is one of the most abundant rockfish species and an important forage species in the California Current Ecosystem. Historically, shortbelly rockfish was most abundant off central California from Monterey Bay to Point Reyes, common in southern California, and only rarely encountered north of Cape Mendocino, California. In recent years, shortbelly rockfish distribution has extended north of Cape Mendocino, California and into Oregon and Washington waters, the principal fishing areas the midwater trawl fishery operates in to harvest Pacific whiting. While shortbelly rockfish bycatch was historically low in the Pacific whiting fishery, the recent expansion in distribution and a likely increase in abundance, is resulting in increased bycatch of shortbelly rockfish in the Pacific whiting midwater trawl fishery.

Increasing the shortbelly rockfish ACL to 3,000 mt for the final half of the 2020 fishing year will accommodate incidental bycatch of the shortbelly rockfish stock given recent high bycatch in groundfish trawl fisheries, while continuing to minimize bycatch, discourage development of a targeted fishery for shortbelly rockfish, and continuing to protect the availability of shortbelly rockfish as important forage in the California Current Ecosystem.

As described in the proposed rule (85 FR 21372; April 17, 2020) the increase of the 2020 ACL is not anticipated to induce targeting of shortbelly and continues to protect the availability of shortbelly rockfish as important forage in the California Current Ecosystem. Scientific information currently available provides evidence of above average forage conditions in the California Current Ecosystem with higher abundances of forage species such as anchovy and a high overall shortbelly rockfish population in 2018-2019. Further, the higher ACL is well below the shortbelly rockfish OFL of 6,950 mt, and ABC of 5,789 mt.

The final rule is an accountability measure that addresses the operational issue of a low ACL that resulted in ACL overages in 2018 and 2019. National Standard 1 Guidelines state: “On an annual basis, the Council must determine as soon as possible after the fishing year if an ACL was exceeded. If an ACL was exceeded, AMs must be implemented as soon as possible to correct the operational issue that caused the ACL overage, as well as any biological consequences to the stock or stock complex resulting from the overage when it is known.”

The final rule will improve the performance and effectiveness of the ACL by increasing the ACL to reflect new information regarding shortbelly rockfish abundance and bycatch rates in the groundfish fishery. This will reduce the risk of an ACL overage in 2020, which would potentially close midwater trawl fisheries and cause adverse economic impacts to West Coast fishing communities while continuing to protect the availability of shortbelly rockfish as important forage in the California Current Ecosystem.

The Council is considering harvest specifications and management measures for shortbelly rockfish as part of the 2021-2022 groundfish biennial harvest specifications cycle. The Council adopted a shortbelly rockfish ACL of 2,000 mt as its final preferred alternative for the 2021-2022 groundfish biennial harvest specifications cycle during its April 2020 meeting. The Council is also considering accountability measures such as ACTs to address any potential ACL overage as part of the 2021-2022 groundfish biennial harvest specifications and management measures and is anticipated to adopt the final preferred shortbelly rockfish management measures during its June 2020 meeting.

Cowcod (Sebastes levis) South of 40°10′ N Latitude

This final rule removes the cowcod ACT of 6 mt and reduces the research catch set-aside to 1 mt for cowcod south of 40°10′ N latitude in 2020. The ACL will remain at 10 mt. Cowcod allocations increase from 2.2 mt to 3.2 mt to the trawl sectors, and from 3.8 mt to 5.8 mt to the non-trawl sectors. The 2020 cowcod annual vessel limit increases from 858 pounds (0.4 mt) to 1,264 pounds (0.6 mt) for affected participants in the limited entry trawl fishery south of 40°10′ N latitude. The measures are summarized in Table 3 below.

The Pacific Coast Groundfish Trawl Catch Share Program (75 FR 60868; October 1, 2010 and 75 FR 78343; December 15, 2010) issued IFQ to limited entry trawl participants. In addition to IFQ, the program established annual vessel limits for IFQ species to prevent any one entity from having excessive control of a stock during a fishing year. The low overall catch limits of cowcod have prevented the Shorebased IFQ bottom trawlers from accessing healthy co-occurring groundfish stocks and in some years have resulted in vessels ending their fishing season early.

Although the cowcod stock is now rebuilt, the timing of the biennial groundfish specification cycle means that the fleet would not benefit from less restrictive cowcod catch limits until 2021. This measure will reduce the risk that vessels fishing south of 40°10′ N lat. in the groundfish trawl IFQ program would reach their annual vessel limit for cowcod in 2020 and have to cease fishing in the trawl IFQ program for the remainder of the year, which would result in severe adverse economic impacts for those vessels and the fishing communities reliant on the trawl fishery south of 40°10′ N lat.

In addition, the action may also benefit the non-trawl sectors including sport, limited entry fixed gear, and open access because the non-trawl allocation will increase by 2 mt (4,409 lbs) compared to the limit initially implemented for 2020. This could create additional flexibility for these fleets.

Comments and Responses

On April 17, 2020, NMFS published a proposed rule in the Federal Register for the 2020 harvest specifications and management measures for Pacific whiting, shortbelly rockfish and cowcod (85 FR 21372). The comment period on the proposed rule closed on May 4, 2020. NMFS received seven unique comment letters during the comment period on the proposed rule. There were three letters from private citizens, two letters from the Pacific Whiting Conservation Cooperative (PWCC) and West Coast Seafood Processors Association (WCSPA)—organizations representing participants in the non-tribal whiting fishery, one letter from the Quinault Indian Nation, and one letter from the California Department of Fish and Wildlife (CDFW).

NMFS received one comment from a private citizen in support of the entire action, and has addressed all summarized comments related to specific aspects of the proposed rule below.

Comment 1: The PWCC and WCSPA supported the process NMFS used to set the coastwide Pacific whiting TAC, as well as the resulting allocations.

Response: NMFS agrees. This was the first time JMC did not reach a bilateral agreement on the coastwide TAC for Pacific whiting. The Agreement between the Governments of the United States and Canada on Pacific Whiting/Hake does not specify a procedure for when the JMC does not agree on a coastwide TAC. Therefore, NMFS followed the procedures identified in the 2006 Pacific Whiting Act to set a coastwide TAC. The coastwide TAC of 575,000 mt is well below the default level of F-40 percent and is consistent with the best available scientific information, provisions of the Agreement, and the Whiting Act, and provides adequate opportunity for both Canadian and U.S. fleets, while sustainably managing the Pacific whiting resource.

Comment 2: The PWCC and WCSPA commented that it is critical NMFS implement a final rule to set the Pacific whiting allocations rule prior to May 15, 2020, because delays will cause economic harm and significant operational disruption.

Response: NMFS recognizes that delays in setting a Pacific whiting allocation in time for the start of the season on May 15, 2020 could impact the Pacific whiting fleet. NMFS worked to implement this final rule as quickly as possible. However, the overall rulemaking process was delayed because the JMC did not reach agreement on the coastwide TAC, and NMFS was unable to publish a final rule before the start of the 2020 Pacific whiting fishery on May 15, 2020. To ensure the Pacific whiting fishery would be able to operate at the start of the season, NMFS used existing regulatory provisions to issue interim Pacific whiting allocations for the Shorebased IFQ Program and the at-sea MS Coop and C/P Coop sectors. NMFS notified these sectors on May 1, 2020, that the interim allocations would be available to fish at the start of the Pacific whiting fishery on May 15, 2020. The interim allocations are based on the lowest value of the coastwide TAC (555,000 mt) analyzed in the proposed rule (84 FR 20578; April 17, 2020). With this final rule, NMFS is allocating additional Pacific whiting to each sector to match the allocations set in this action.

Comment 3: The Quinault Indian Nation expressed concern that the language used in the proposed rule mischaracterized the 2020 Pacific whiting tribal allocation to the Treaty Tribes as an allocation exclusively for the Makah Indian Tribe, and requested NMFS change language in the rulemaking to clarify that the allocation is to all four of the Treaty Tribes.

Response: NMFS agrees the tribal allocation is an interim, annual allocation to the four Washington coastal Indian tribes, including the Makah Indian Tribe, Quileute Indian Tribe, Quinault Indian Nation, and the Hoh Indian Tribe. As with prior tribal Pacific whiting allocations, this final rule is not intended to establish 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 implements an interim allocation. The long-term tribal treaty amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal tribes and the states of Washington and Oregon.

Comment 4: The PWCC commented that it is critical to consider the potential economic impacts, overall and to specific non-tribal sectors, of the proposed allocation, especially because the regulations make reapportionment of tribal whiting to non-tribal sectors dependent upon fishery-wide Chinook salmon bycatch performance.

Response: The economic analysis supporting the annual Pacific whiting TAC action outlines the economic impacts of the proposed tribal allocation. The purpose of the tribal allocation is to facilitate the tribes exercising their treaty right to harvest fish in their usual and accustomed fishing areas in U.S. waters. NMFS must take the necessary steps to ensure that this opportunity is available to those tribes. In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish, including Pacific whiting, in the Pacific Ocean, and concluded that, in general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes usual and accustomed fishing areas. These treaty rights are implemented by the Secretary following the procedures outlined in 50 CFR 660.60.

Regulations governing reapportionment give the Secretary discretion, but do not impose an obligation, to reapportion Pacific whiting from the tribal sector of the Pacific whiting fishery to non-tribal sectors. The reapportioning process allows the non-tribal fleet to fish unharvested tribal allocations of Pacific whiting. The economic analysis for this rule does not consider the benefits of reapportioning the tribal allocation, which is consistent with the economic analysis discussed in the 2019 final rule for Pacific whiting (84 FR 20578; May 10, 2019).

In the economic analysis for this rule, the benefits from the tribal allocation are assumed to accrue to the tribal sector, and the benefits from the non-tribal allocation are assumed to accrue to the non-tribal sectors. Reapportionment flexibility is an additional potential benefit to the non-tribal sector, only in years when the tribal sector does not prosecute the entirety of its allocation. In the economic analysis, no portion of the benefits from the tribal allocation are assumed to accrue to the non-tribal sector, which would double-count the value of the benefit of this allocation to the tribal sector.

The requirement to consider salmon bycatch as part of reapportionment is a term and condition in the 2017 Endangered Species Act (ESA) Section 7(a)(2) Biological Opinion on the effects of the Pacific Coast Groundfish FMP on listed salmonids. Term and Condition 2c of the Biological Opinion requires that NMFS consider the level of Chinook bycatch when determining whether to reapportion whiting and the Pacific Coast Groundfish regulations were amended to require this consideration (84 FR 20578; May 10, 2019). This consideration does not remove NMFS's obligation to consider economic impacts to the entities affected by this action. However, because of the unique nature of reapportionment, NMFS's treaty trust obligations to the Pacific Coast treaty Indian tribes and ESA considerations are the ultimate drivers of that decision, rather than the economic considerations.

Comment 5: PWCC commented that economic harm can occur in the non-tribal whiting sectors if NMFS does not use the re-apportionment process to effectively balance the needs of the tribal and non-tribal fisheries. PWCC further noted it is important that re-apportionment of tribal whiting to the non-tribal sectors include consideration of sector-specific Chinook bycatch and that NMFS provide re-apportionment of tribal whiting to specific non-tribal sectors based on their ability to harvest additional whiting.

Response: These management suggestions are outside of the scope of the measure discussed in the proposed rule but could be achieved through the Council process. In most years, NMFS has allocated reapportioned tribal Pacific whiting allocation to the non-tribal sectors based on the allocations in the Pacific Coast Groundfish FMP (i.e., 34 percent for the C/P Coop; 24 percent for the MS Coop; and 42 percent for the Shorebased IFQ Program). NMFS has also distributed reapportioned tribal whiting to specific non-tribal sectors based on concerns about Chinook salmon bycatch in 2014 (80 FR 7390; February 10, 2015), based on recommendation by the Council. In that reapportionment action, NMFS distributed reapportioned fish to the MS and C/P sectors, but not to the Shorebased IFQ sector. That action was based on voluntary bycatch reduction measures that were taken by the MS and C/P sectors in conjunction with projected higher bycatch rates in the Shorebased IFQ sector, and the fact that the Shorebased IFQ sector had not yet attained its existing allocation. In addition, the regulations now explicitly require NMFS to consider salmon bycatch as part of the reapportionment process, based on a requirement from the 2017 ESA Section 7(a)(2) Biological Opinion on the effects of the Pacific Coast Groundfish FMP on listed salmonids (84 FR 20578; May 10, 2019). However, NMFS has only adjusted reapportionment between non-tribal sectors to address salmon bycatch considerations, and has not made adjustments based on other considerations, such as the various non-tribal sectors' ability to harvest reapportioned Pacific whiting.

NMFS notes there are many factors than can affect the non-tribal sectors' ability to harvest reapportioned Pacific whiting. The Council would need to make recommendations on the specific criteria NMFS should use to adjust reapportionment based on these factors. The Council is considering developing management alternatives to increase Pacific whiting utilization in the MS Sector. This may provide an opportunity for other considerations about allocations to non-tribal sectors during the tribal whiting reapportionment process.

Comment 6: The PWCC commented that it is critical that re-apportionment of tribal whiting to the non-tribal sectors occur no later than September 15th.

Response: Current regulations provide NMFS with flexibility in the timing of reapportionment and allow for reapportionment to occur prior to September 15, but do not require reapportionment to happen on or before a specific date. Revisions to the timing of the reapportionment to require it before September 15 are beyond the scope of the action discussed in the proposed rule. NMFS is responsible for consulting with the tribes to ensure that reapportionments, should they occur, will not limit tribal harvest opportunities. As explained in the Regulatory Impact Review (RIR) and Initial Regulatory Flexibility Analysis (IRFA), the timing of reapportionment in regulations was intended to allow for the tribal fishery to proceed to a point where it could likely be determined whether the full allocation would be used, while reallocating in time to allow the non-treaty sectors to catch the reallocated fish prior to the onset of winter weather conditions. In some years, the participating tribes may determine prior to September 15 that they will not use a portion of the tribal allocation.

As noted in the 2019 final rule for Pacific whiting (84 FR 20578; May 10, 2019), based on a review of reapportionment actions in 2012-2018, it does not appear that the timing of the reapportionment impacted operational decisions during that time period. For reference, in 2012 the non-tribal sector caught 24,142 mt more than its initial allocation, of 28,000 mt reapportioned on October 4. In 2013, after a 30,000 mt reallocation on September 18 (16 days earlier than in 2012), the non-tribal fishery caught 24,146 mt more than its initial allocation. The 16-day earlier reapportionment yielded 4 mt more catch (valued at $1,210 in real dollars). In 2014, a 25,000 mt initial reapportionment on September 12 resulted in only 4,564 mt attained over the initial non-tribal allocation. From 2015-2018, the non-tribal fishery as a whole did not catch its initial allocation, which implies that the timing of reallocations did not likely impact operational decisions during that period. NMFS notes that in 2019, reapportionment action occurred on September 13, 2019.

Comment 7: The PWCC and WCSPA support the increase to the 2020 shortbelly rockfish ACL. They pointed to the strong justification in proposed rule and draft Environmental Assessment regarding the necessity of this action, the negligible environmental and ecosystem impacts of the increase to the shortbelly rockfish ACL, and the economic impacts of potential closure.

Response: NMFS agrees and notes increasing the 2020 ACL for shortbelly rockfish to 3,000 mt accommodates incidental bycatch of the shortbelly rockfish stock given recent high bycatch in groundfish trawl fisheries, while continuing to minimize bycatch and discourage development of a targeted fishery for shortbelly rockfish. The increase is based on the best scientific information available as described in the Analytical Document and Environmental Assessment.

Comment 8: CDFW commented in support of eliminating the 2020 ACT of 6 mt for cowcod south of 40°10′ N latitude and reducing the research set-aside amount to 1 mt.

Response: NMFS agrees and notes that low catch limits of cowcod have prevented the IFQ bottom trawlers from accessing healthy groundfish stocks and, in some years, have resulted in trawl vessels ending their fishing season early. The 2019 cowcod assessment indicates stock biomass has exceeded the rebuilding target. However, because of the timing of the biennial groundfish specification cycle, the fleet would not benefit from less restrictive catch limits until 2021. This measure reduces the risk that vessels in the trawl IFQ bottom trawl fishery reach their annual vessel limit for cowcod in 2020 and have to cease fishing in the IFQ bottom trawl fishery for the remainder of the year.

Comment 9: CDFW commented that in addition to benefits of the trawl sector, eliminating the cowcod ACT may positively benefit non-trawl sectors because this change also increases the non-trawl cowcod allocation. The increase to the non-trawl allocation reduces the likelihood of the non-trawl fisheries exceeding this new limit.

Response: NMFS agrees there are benefits to both the trawl and non-trawl sectors of eliminating the ACT of 6 mt for cowcod south of 40°10′ N latitude and reducing the research set-aside amount to 1 mt. NMFS notes this information was included in the RIR/IRFA and was considered by the Council and NMFS in the decision-making process.

Comment 10: A private citizen commented that if NMFS wants to loosen restrictions on fishing, NMFS needs science, not political pressure, to prove fish stocks are back to full capacity and need to keep monitoring the situation.

Response: NMFS is committed to following Magnuson-Stevens Act National Standards, including National Standard 2 which states conservation and management measures shall be based on the best scientific information available. The actions in this rule are based on the most up-to-date stock assessments of Pacific whiting, cowcod south of 40°10′ N lat. and shortbelly rockfish, as well as recent fishery-independent survey data, California Current Ecosystem Status Reports, and monitoring of fishery operations off the West Coast.

NMFS is also committed to following mandates including the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., as implemented by the Council on Environmental Quality Regulations (40 CFR parts 1500 through 1508), which requires that Federal agencies include in their decision-making processes appropriate and careful consideration of all environmental effects of proposed actions, analyze potential environmental effects of proposed actions and their alternatives, avoid or minimize adverse effects of proposed actions, and restore and enhance environmental quality to the extent practicable.

Changes From the Proposed Rule

No substantive changes from the proposed rule were made based on comments NMFS received. NMFS is making a technical correction to remove incorrect footnotes in Table 2B to Part 660, Subpart C consistent with the final rule for Amendment 21-4 to the Pacific Coast Groundfish FMP, published December 17, 2019 (84 FR 68799), that changed the within-trawl allocation structure for darkblotched rockfish, Pacific ocean perch, and widow rockfish. This correction also brings the table and footnotes into consistency with existing regulations concerning trawl and non-trawl allocations at § 660.55(c).

Classification

The Administrator, West Coast Region, NMFS, determined that the final rule is necessary for the conservation and management of the Pacific whiting and Pacific coast groundfish fisheries and that it is consistent with section 304(b)(1)(A) and 305(d), and other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, the Pacific Coast Groundfish FMP, and other applicable laws.

Pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds good cause to waive the 30-day delay in the date of effectiveness for this final rule because such a delay would be contrary to the public interest. If this final rule were delayed by 30 days, Pacific coast groundfish fishermen would not be able to fish under the revised, increased, catch limits for Pacific whiting, shortbelly rockfish and cowcod south of 40°10′ N lat. for that time period, and not be able to realize the full level of economic opportunity this rule provides. Waiving the 30-day delay in the date of effectiveness will allow this final rule to more fully benefit the fishery through increased fishing opportunities as described in the Integrated Analysis and preamble of this rule.

In addition, because this rule increases catch limits for Pacific whiting, shortbelly rockfish and cowcod, it relieves a restriction, and therefore also falls within the 5 U.S.C. 553(d)(1) exception to the 30-day delay in the date of effectiveness requirement. The Pacific whiting fishery season began fishing on May 15, 2020 under interim allocations based on the lowest coastwide TAC analyzed in the proposed rule. This final rule implements a higher TAC for Pacific whiting and implementing the rule upon publication provides the whiting fleet more opportunity and greater flexibility to harvest the optimal yield. Additionally, the increased shortbelly rockfish ACL is critical to implement immediately because the Pacific whiting fishery is underway and is encountering high levels of shortbelly rockfish bycatch. The higher ACL for shortbelly rockfish implemented with this rule allows the Pacific whiting fishery access to a higher bycatch allocation for a longer duration of the fishing season and allows them to make business plans with the higher allocation. Finally, removal of the cowcod ACT and decrease of the research set-aside removes current constraints on the groundfish fishery in that area.

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. Making this rule effective immediately would also serve the best interests of the public because it will allow for the longest possible fishing season for Pacific whiting and cowcod south of 40°10′ N, and therefore the best possible economic outcome for those whose livelihoods depend on this fishery. Because the 30-day delay in effectiveness would potentially cause significant financial harm without providing any corresponding benefits, this final rule is effective upon publication in the Federal Register.

The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866. This final rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

Final Regulatory Flexibility Analysis

NMFS published a proposed rule on April 17, 2020 (85 FR 21372), for the 2020 Harvest Specifications for Pacific Whiting, shortbelly rockfish, and cowcod, and 2020 tribal allocation for Pacific whiting. An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on May 4, 2020. NMFS received seven comment letters on the proposed rule. The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file any comments on the IRFA or 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. A final regulatory flexibility analysis (FRFA) was prepared and incorporates the IRFA and response to the public comments, which are summarized in the Comments and Responses section of this final rule. NMFS also prepared a RIR for this action. A copy of the RIR/FRFA is available from NMFS (see ADDRESSES). A summary of the FRFA, per the requirements of 5 U.S.C. 604 follows.

Under the Regulatory Flexibility Act (RFA), the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The SBA 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. 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. For purposes of rulemaking, NMFS is also applying the seafood processor standard to catcher processors because Pacific whiting Catcher-Processors (C/Ps) earn the majority of the revenue from processed seafood product.

A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

NMFS received comments from the PWCC, an organization representing the non-tribal sector of the Pacific whiting fishery, reiterating comments submitted last year regarding the economic importance of the re-apportionment of unharvested tribal allocations to the non-tribal fishery, and concerns regarding the timing and considerations driving the re-apportionment process. Our response to the comments received on the proposed rule, including those that commented on the economic analyses summarized in the IRFA, can be found in the Comment and Response section of this rule. As outlined in that section, Comment 4 discusses the economic analysis of the proposed allocation, especially given the requirement to consider Chinook salmon bycatch during the re-apportionment process. Comment 5 discusses the importance of the re-apportionment process to balance the needs of the tribal and non-tribal fisheries as well as sector-specific considerations when re-apportioning tribal whiting to non-tribal fisheries. Comment 6 discusses the timing of re-apportionment of tribal whiting to the non-tribal sectors. Detailed responses are provided to each of these specific comments in the preamble of this rule and are not repeated here. There were no other comments directly related to the IRFA; the Chief Counsel for the Office of Advocacy of the SBA did not file any comments. No changes to the proposed rule measures were necessary as a result of these public comments.

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 rule 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.

NMFS expects one tribal entity to fish for Pacific whiting in 2020. Tribes are not considered small entities for the purposes of RFA. Impacts to tribes are nevertheless considered in this analysis. As of January 2020, the Shorebased IFQ Program is composed of 167 Quota Share (QS) permits/accounts (134 of which were allocated whiting quota pounds), and 41 first receivers, 2 of which are designated as whiting-only receivers and 15 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 currently consists of 6 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 SBA 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 2020, all 10 C/P permits reported they are not small businesses, as did 8 MS/CV. 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 QS permit/account holders, and affiliation through ownership, NMFS estimates that there are 106 non-tribal entities directly affected by these regulations, 85 of which are considered “small” businesses.

This rule allocates 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 2019 NMFS reapportioned 40,000 mt of the original 77,251 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 2019 following the reapportionment were: Tribal 37,251 mt, C/P Co-op 136,912 mt; MS Co-op 96,644 mt; and Shorebased IFQ Program 169,126 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 2015 to 2019, the total Pacific whiting fishery (tribal and non-tribal) averaged harvests of approximately 281,205 mt annually. The 2019 U.S. non-tribal fishery had a catch of approximately 312,500 mt, and the tribal fishery landed approximately 4,000 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 2019 average shoreside ex-vessel price of Pacific whiting, which was $200 per mt. At that price, the 2020 tribal allocation of 74,342 mt would have an ex-vessel value of $14.9 million.

Shortbelly Rockfish

The rule primarily affects limited entry trawl vessels, especially midwater trawl vessels targeting Pacific whiting and semi-pelagic rockfish (i.e., non-whiting) north of 40°10′ N latitude given the sectors and gear experiencing the highest bycatch of shortbelly rockfish in recent years. The entities fishing for Pacific whiting (described in detail above), and the 14-20 vessels fishing in the non-whiting midwater trawl fishery in 2017-2018, would be affected. The shortbelly rockfish alternative will have neutral to positive impacts for limited entry trawl participants fishing in the Pacific whiting and non-whiting midwater fisheries.

Cowcod South of 40°10′ N Latitude

The rule directly impacts two groups: Quota share owners of cowcod south of 40°10′ N latitude and catcher vessel owners who operate vessels south of 40°10′ N latitude and have the potential to encounter cowcod. There are 62 entities that own 2020 cowcod quota and 7 vessels that caught cowcod south of 40°10′ N latitude in 2019 that would be impacted by this rule. The cowcod alternative will have neutral to positive impacts for limited entry trawl participants who own quota for this species and/or fish south of 40°10′ N latitude. Quota owners that are able to sell increased quota amounts may benefit. Most IFQ vessels do not operate south of 40°10′ N latitude and would experience no impacts from the preferred alternative.

Regulatory Flexibility Act (RFA) Determination of No Significant Impact

NMFS determined this rule does 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. The shortbelly and cowcod measures will assist small entities by reducing the risk of early closures due to bycatch. The shortbelly rockfish and cowcod measures are temporary and will be in effect for less than 1 year.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

There are no reporting, recordkeeping or other compliance requirements in the final rule.

No Federal rules have been identified that duplicate, overlap, or conflict with this action.

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

Pacific Whiting

This action determines the 2020 coastwide TAC of 575,000 mt, with a corresponding U.S. TAC of 424,810 mt. NMFS considered a range of alternatives for the Pacific whiting coastwide TAC, including a lower coastwide TAC of 555,000 mt and higher coastwide TACs of 597,500 mt and 666,480 mt. The lower coastwide TAC (555,000 mt) would have greater economic impacts for 2020 than the coastwide TAC of 575,000 mt. The higher coastwide TACs considered in the range (597,500 mt and 666,480 mt) would have less economic impact for 2020. However, 2020 stock assessment projections indicate these higher catch levels (e.g. 597,500 mt and 666,480 mt) may result in near-term stock biomass declines below target levels. This is contrary to the Whiting Act and Agreement, which requires sustainable management of the Pacific whiting resource.

NMFS considered two alternatives for the tribal allocation action: The “No-Action” and the “Proposed Action.” NMFS did not consider a broader range of alternatives to the proposed tribal 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 Action alternative, NMFS set the tribal allocation percentage at 17.5 percent, as requested by the tribes. This would yield a tribal allocation of 74,342 mt for 2020. 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 rights. 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 2020, which would be inconsistent with NMFS's responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2020, this alternative received no further consideration.

Shortbelly Rockfish

This action establishes the 2020 ACL of 3,000 mt. The Council and NMFS considered two additional alternatives for shortbelly rockfish: No action and specifying a 2020 ACL of 4,184 mt. Under the no action alternative, NMFS would not change the 2020 ACL for shortbelly rockfish. This no action alternative has the highest risk of an early fishery closure and lost revenue for Pacific whiting and limited entry non-whiting midwater trawl fisheries and communities. The range of predicted impacts in terms of foregone income is $4.6 million to $175.2 million depending on whether there is a late season closure in December or an earlier closure in June. The measure for shortbelly rockfish would reduce the risk of an early closure for midwater trawl fisheries due to the possibility of high bycatch of shortbelly rockfish in 2020, and avoid the adverse economic impacts to West Coast fishing communities that would result from such closures or constraints. The measure to establish the 2020 ACL at 3,000 mt, rather than the alternative of 4,184 mt, should be sufficient to avoid constraining the midwater trawl fishery while continuing to ensure more than adequate shortbelly rockfish as forage.

Cowcod South of 40°10′ N Latitude

This action eliminates the 2020 ACT of 6 mt for cowcod south of 40°10′ N latitude and reduces the research set-aside amount to 1 mt. The measure increases the annual vessel limit for cowcod from 858 lbs (0.4 mt) to 1,264 lbs (0.6 mt). This measure meets the stated purpose and need to reduce the risk that IFQ vessels south of 40°10′ N latitude will reach their individual vessel limits of cowcod in 2020 and have to cease fishing in the IFQ fishery for the remainder of the year, which would result in adverse economic impacts on those vessels and fishing communities in the area.

The Council and NMFS considered no action and alternatives to provide relief on limited entry trawl participants fishing south of 40°10′ N latitude, including removing the ACT and varying adjustments to the research set-aside amounts. Under the no action alternative, NMFS would not change the ACT or research set-aside amounts. This no action alternative would result in potential loss of revenue if vessels reach their cowcod individual vessel limit and are required to cease fishing for the remainder of the year.

The Council considered an alternative to remove the ACT of 6 mt and reduce the research set-aside to 0.5 mt. This alternative may have resulted in a lesser economic impact on vessels and fishing communities, but it did not provide an adequate amount of cowcod for research.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this and the related 2019-2020 Biennial Specifications and Management Measures for the Pacific Coast Groundfish Fishery (83 FR 63970; December 12, 2018) rulemaking process, a small entity compliance guide was sent to stakeholders, and copies of the final rule and guides (i.e., information bulletins) are available from NMFS at the following website: https://www.fisheries.noaa.gov/species/pacific-whiting#management.

Consultation and Coordination With Indian Tribal Governments

Pursuant to Executive Order 13175, this final 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 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 final rule have been developed following these procedures.

With this final rule, NMFS, acting on behalf of the Secretary, determined 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. Wash. 1974).

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indian Fisheries

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

PART 660--FISHERIES OFF WEST COAST STATES

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 2a to part 660, subpart C, to read as follows:

4. Revise table 2b to part 660, subpart C, to read as follows:

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