23620 Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Rules and Regulations 

[FR Doc. 2010–10400 Filed 4–29–10; 4:15 pm] 

BILLING CODE 3510–22–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 100421192–0193–01] 

RIN 0648–AY78 and 0648–AY59 

Magnuson-Stevens Act Provisions; 

Fisheries Off West Coast States; 

Pacific Coast Groundfish Fishery; 

Biennial Specifications and 

Management Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; inseason adjustments 

to groundfish management measures; 

Pacific whiting harvest specifications 

and tribal allocation; request for 

comments. 

SUMMARY: This final rule establishes the 

2010 fishery specifications for Pacific 

whiting in the U.S. exclusive economic 

zone (EEZ) and state waters off the 

coasts of Washington, Oregon, and 

California, as authorized by the Pacific 

Coast Groundfish Fishery Management 

Plan (FMP). These specifications 

include the level of the acceptable 

biological catch (ABC), optimum yield 

(OY), and allocations for the non-tribal 

commercial sectors. This final rule also 

announces the tribal allocation of 

Pacific whiting for the 2010 season and 

inseason adjustments of bycatch limits 

for the 2010 Pacific whiting fishery. 

DATES: Effective April 29, 2010. 

Comments on the revisions to bycatch 

limits must be received no later than 5 

p.m., local time on May 19, 2010. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AY78 by any of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: 206–526–6736, Attn: Kevin C. 

Duffy. 

• Mail: Barry A. Thom, Acting 

Regional Administrator, Northwest 

Region, NMFS, Attn: Kevin C. Duffy, 

7600 Sand Point Way NE., Seattle, WA 

98115–0070. 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit Confidential 

Business Information or otherwise 

sensitive or protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Kevin C. Duffy (Northwest Region, 

NMFS), phone: 206–526–4743, fax: 206– 


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Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Rules and Regulations 23621 

aOY is the amount of fish that will provide the 

greatest overall benefit to the Nation, taking into 

account the protection of marine ecosystems. It is 

defined on the basis of maximum sustained yield 

from the fishery, as reduced by any relevant 

economic, social, or ecological factors. For 

overfished species, OY provides for rebuilding to a 

level consistent with producing maximum 

sustained yield. 

526–6736 and e-mail: 

kevin.duffy@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This final rule is accessible via the 

Internet at the Office of the Federal 

Register’s Web site at http:// 

www.gpoaccess.gov/fr/index.html. 

Background information and documents 

are available at the Pacific Fishery 

Management Council’s Web site at 

http://www.pcouncil.org/. Background 

information and documents are also 

available at the NMFS Northwest Region 

Web site at http://www.nwr.noaa.gov/ 

Groundfish-Halibut/Groundfish-FisheryManagement/index.cfm. 

Copies of the final environmental 

impact statement (FEIS) for the 2009– 

2010 Groundfish Specifications and 

Management Measures are available 

from Donald McIsaac, Executive 

Director, Pacific Fishery Management 

Council (Council), 7700 NE Ambassador 

Place, Portland, OR 97220, phone: 503– 

820–2280. 

Copies of additional reports referred 

to in this document may also be 

obtained from the Council. Copies of the 

Record of Decision (ROD), final 

regulatory flexibility analysis (FRFA), 

and the Small Entity Compliance Guide 

are available from Barry A. Thom, 

Acting Administrator, Northwest Region 

(Regional Administrator), NMFS, 7600 

Sand Point Way, NE., Seattle, WA 

98115–0070. 

Background 

On December 31, 2008, NMFS 

published a proposed rule to implement 

the 2009–2010 specifications and 

management measures for the Pacific 

Coast groundfish fishery (73 FR 80516). 

A final rule was published on March 6, 

2009 (74 FR 9874), which codified the 

specifications and management 

measures in the CFR (50 CFR part 660, 

subpart G), except for the Pacific 

whiting harvest specifications. This 

final rule establishes the 2010 harvest 

specifications for Pacific whiting. The 

proposed rule announced a range of 

Pacific whiting harvest specifications 

that were being considered for 2009 and 

2010, and also announced the intent to 

adopt final specifications after the 

Council’s March 2009 and 2010 

meetings. As explained below, the 

information necessary for the annual 

updated stock assessment is not 

available until January or February, 

which necessarily delays the 

preparation of the stock assessment 

until February. 

Delaying the adoption of Pacific 

whiting specifications until March is 

also consistent with the U.S.-Canada 

agreement for Pacific whiting. The U.S.- 

Canada agreement for Pacific whiting 

was signed in November 2003. This 

agreement addresses the conservation, 

research, and catch sharing of Pacific 

whiting. Presently, both countries are 

taking steps to fully implement the 

agreement. Until this occurs, the 

negotiators recommended that each 

country apply the agreed-upon 

provisions to their respective fisheries. 

In addition to the time frame in which 

stock assessments are to be considered 

and harvest specifications established, 

the U.S.-Canada agreement specifies 

how the catch is to be shared between 

the two countries. The Pacific whiting 

catch sharing arrangement provides 

73.88 percent of the total catch 

Optimum Yield (OY) a to the U.S. 

fisheries, and 26.12 percent to the 

Canadian fisheries. This action accounts 

for this division of catch share 

allocation between the U.S. and Canada. 

On April 23, 2010, NMFS received a 

decision in the case of Natural 

Resources Defense Council v. Locke, 

Case No. C 01–0421 JL (N.D. Cal.), in 

which the court has ruled against NMFS 

on an issue related to darkblotched 

rockfish. The court has not yet issued 

the Order on Remedy, and NMFS is in 

the process of determining the full 

implications of this decision. NMFS is 

publishing this rule as scheduled so that 

it will be in place for the start of the 

Pacific whiting season. Upon further 

review of the court decision, NMFS will 

determine whether additional measures 

may be needed with respect to 

darkblotched rockfish, and will 

implement any such measures through 

an emergency rule. 

Comments and Responses 

In addition to the December 2008 

proposed rule, on March 12, 2010 

NMFS issued a proposed rule for the 

allocation and management of the 2010 

tribal Pacific whiting fishery (75 FR 

11829). The comment period on this 

proposed rule closed on April 2, 2010. 

During the comment period, NMFS 

received four letters of comment. The 

Makah Tribe and the Quileute Tribe 

each submitted letters of comment 

concerning the tribal allocation for 

Pacific whiting. The Pacific Whiting 

Conservation Cooperative and the West 

Coast Seafood Processors Association 

also submitted letters of comment. As 

discussed further below, this final rule 

takes the tribal allocation figures into 

account in its final allocation of Pacific 

whiting. 

Makah Tribe 

Comment 1: The Makah Tribe 

requested that NMFS establish interim 

individual tribal set-asides for Makah 

and Quileute in 2010, as it did in 2009. 

They requested a 2010 Makah Pacific 

whiting set aside of 17.5 percent of the 

2010 Pacific whiting U.S. OY, the 

amount reflected in the proposed rule. 

They commented on the Quileute’s 

request for a 16,000 mt set aside in 

2010, stating the Quileute have 

provided no indication that they have 

two boats that will participate. Further, 

they pointed out that when Makah 

entered the fishery in 1996, the tribal 

allocation was 5,000 mt per boat, and in 

the following two years, the allocation 

increased to 6,000 mt per boat. They 

said that during this time period, there 

were fewer serious bycatch constraints 

on the fishery than there are today. They 

also pointed out that the set aside for 

Makah in 2009 averaged less than 5,000 

mt per boat. 

The Makah also expressed support for 

NMFS’s position regarding 

reapportionment of the tribal Pacific 

whiting allocation stated in the 

proposed rule. They stated their belief 

that the Quileute’s usual and 

accustomed grounds are much less 

extensive than those currently 

designated by NMFS, and the Makah 

noted that they have initiated a subproceeding in United States v. 

Washington to determine the actual 

boundaries of those areas. Finally, the 

Makah clarified that there are five boats, 

rather than four, in their Pacific whiting 

fishery. 

Response: NMFS supports the Makah 

request for 17.5 percent of the 2010 

Pacific whiting U.S. OY, as stated in the 

proposed rule, and is using that amount 

in its calculation of the overall tribal 

allocation for 2010. However, NMFS 

supports this request as a component of 

the total tribal allocation for 2010 as 

opposed to an individual tribal set 

aside. On March 6, 2009, NMFS adopted 

a Pacific whiting tribal allocation of 

50,000 mt for the 2009 fishing season 

(74 FR 9874). This allocation was 

codified at 50 CFR 660.385. In the rule, 

individual set asides for the Makah 

Tribe (42,000 mt) and Quileute Tribe 

(8,000 mt) were established for 2009. In 

a May, 2009 rule (74 FR 20620), NMFS 

reapportioned 18,211 mt of the tribal 

allocation to the non-tribal sector. This 

action was based on the low OY of 

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Pacific whiting for 2009, the Makah 

Tribe’s intent to harvest only 23,789 mt 

of their 42,000 mt set aside, and their 

request that the 18,211 mt be 

reapportioned to the non-tribal sectors 

of the fishery. 

Based on the separate requests by the 

Makah and Quileute Tribes, NMFS set 

the individual tribal set asides for 2009 

at 42,000 mt and 8,000 mt, respectively. 

At the June 2008 Council meeting, 

where the specific motion to create 

tribal set asides was discussed, NMFS 

met with the Makah Tribe, the Quileute 

Tribe, and the State of Washington. For 

2010, NMFS has decided to issue an 

overall tribal allocation, without 

individual set asides, primarily for two 

reasons. First, although the Makah Tribe 

made a request for a specific allocation, 

the Quileute Tribe did not. Second, 

NMFS has received comments from the 

Quileute Tribe (addressed below), 

disputing that they agreed to a set aside 

for the 2009 season, and specifically 

requesting that no such set aside be 

created this year. 

NMFS acknowledges the Makah 

Tribes’ comments on the Quileute Tribal 

request of 8,000 mt per boat for 

economic viability, but does not agree 

that this requested amount for 2010 is 

unreasonable. Further, as the Makah 

Tribe notes, the resulting tribal 

allocation appears to be within the total 

treaty right, based on the existing 

scientific information. NMFS is aware of 

the current litigation over the 

boundaries of the Quileute and Quinault 

usual and accustomed fishing grounds, 

and will make adjustments to the 

boundaries as described in its 

regulations if any are needed to achieve 

consistency with any court orders that 

result from that litigation. NMFS 

acknowledges the Makah’s clarification 

on the number of boats in their Pacific 

whiting fishery. 

Quileute Tribe 

Comment 2: The Quileute Tribe stated 

that they never requested or agreed to 

specific set asides for their proposed 

Pacific whiting fishery in 2009, and feel 

NMFS lacks the authority to establish 

intertribal allocations. They did not 

object to the total amount of the tribal 

Pacific whiting allocation that would be 

derived under the formula stated in the 

proposed rule (17.5 percent of U.S. OY 

+ 16,000 mt), but requested that the 

final rule simply provide for a total 

tribal allocation, as opposed to 

individual set asides. Regarding 

reapportionment, the Quileute Tribe 

feels a mechanism does not exist for 

reapportionment between these 

separately managed tribal and non-tribal 

fisheries, and stated their desire to 

develop a process where 

reapportionment may be desirable, 

consistent with consultation required by 

Executive Order 13175 and with 

unanimous tribal consensus. The 

Quileute Tribe also indicated that they 

will likely have no more than one vessel 

participating in the fishery in 2010, and 

reiterated their belief that at least 8,000 

mt per boat is necessary for economic 

feasibility. Finally, they stated that the 

total tribal Pacific whiting allocation 

should not be changed based on this 

information, because it is within the 

range of tribal treaty rights to Pacific 

whiting. 

Response: NMFS notes that the 

Pacific whiting set asides established for 

the Makah and Quileute Tribes in 2009 

were based on individual tribal 

requests, and did not set any precedent 

regarding future allocations of Pacific 

whiting to the tribes. The final rule for 

2010 establishes a total tribal allocation, 

as opposed to individual tribal set 

asides. NMFS does not agree that no 

mechanism exists to reapportion unused 

Pacific whiting from the tribal to the 

non-tribal fishery. NMFS currently has 

the authority to reapportion Pacific 

whiting from the tribal to the non-tribal 

fishery under 50 CFR 660.323(c). NMFS 

will coordinate and consult with the 

affected tribes, and will attempt to reach 

consensus before any reapportionment 

decisions are made in 2010. However, 

absent consensus, the NMFS Regional 

Administrator will make 

reapportionment decisions. NMFS 

acknowledges the Quileute Tribe’s 

comments that they will probably have 

no more than one vessel participating in 

the fishery in 2010, and that they 

believe the total tribal allocation should 

not be changed, given this information. 

Pacific Whiting Conservation 

Cooperative 

Comment 3: The Pacific Whiting 

Conservation Cooperative (PWCC) 

strongly supports NMFS’ authority to 

reapportion unharvested whiting from 

the tribal fishery to the non-tribal 

fishery, consistent with 50 CFR 

660.323(c), stating that current 

regulations and past practice provide 

the necessary authority. PWCC stated 

their support for the Makah tribal 

request of 17.5 percent of the U.S. OY. 

Finally, PWCC expressed concern that 

NMFS is not requiring greater certainty 

from the Quileute Tribe regarding their 

fishing operation’s capacity to harvest 

16,000 mt of Pacific whiting in 2010, 

and that NMFS is not requesting greater 

clarity from the Quileute Tribe about its 

plans to manage bycatch of overfished 

rockfish and salmonids in a manner 

consistent with the Pacific Fishery 

Management Council’s groundfish 

conservation goals and objectives. 

Response 3: NMFS acknowledges and 

agrees with the PWCC comments 

supporting our authority to reapportion 

Pacific whiting. NMFS concurs with 

PWCC’s support of the Makah request 

for 17.5 percent of the Pacific whiting 

U.S. OY in 2010, but acknowledges that 

this is only a portion of the total tribal 

allocation, and not an individual tribal 

set aside. NMFS is working with all 

tribes participating in the Pacific 

whiting fishery, encouraging them to 

share information about their fisheries 

plans and harvests before and during 

the fishing season. NMFS will make this 

reasonable request a priority for tribal 

participation in Pacific whiting fisheries 

in 2011 and beyond. 

West Coast Seafood Processors 

Association 

Comment 4: The West Coast Seafood 

Processors Association (WCSPA) did 

not object to the Makah Tribes’ request 

for 17.5 percent of the U.S. OY to the 

extent that it falls within the range of 

tribal treaty rights. They also stated their 

belief that the allocation of 16,000 mt to 

the Quileute Tribe in the first year of 

their fishery is excessive. They state that 

2 inexperienced vessels harvesting that 

amount of fish in the relatively short 

time that market-grade Pacific whiting 

are available in the Quileute Tribe’s 

usual and accustomed fishing area, 

without exceeding bycatch limits, is 

exceedingly far-fetched, and that a 

lesser amount should be allocated. They 

also stated their support for NMFS’ 

assertion of its authority to reapportion 

potentially unharvested whiting among 

all sectors, tribal and non-tribal, in 

accordance with regulations governing 

the Pacific groundfish fishery. They 

stated that they expect NMFS to 

exercise this authority ‘‘with due 

diligence’’ in 2010, and in consultation 

with all sectors of the fishery. 

Response 4: NMFS agrees with 

WCSPA’s lack of objection to the Makah 

Tribes’ request for 17.5 percent of the 

Pacific whiting U.S. OY in 2010, and 

reflects that support in this final rule. 

NMFS acknowledges the WCSPA 

perspective that 16,000 mt to the 

Quileute Tribe in their first year of 

operation is excessive. NMFS has 

considered these comments, as well as 

others, in making a final determination 

of the tribal allocation for 2010. NMFS 

will take under advisement the WCSPA 

comment that NMFS assert its authority 

to reapportion potentially unharvested 

whiting among all sectors, tribal and 

non-tribal, in accordance with 

regulations governing the Pacific 

groundfish fishery. NMFS believes it 

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b Defined in the FMP as the Maximum 

Sustainable Yield, or the largest average catch that 

can be taken continuously from a stock under 

average environmental conditions while 

maintaining current stock abundance. 

cThe term ABC is not used here in the same sense 

as it is in the Magnuson-Stevens Act’s National 

Standard 1 Guidelines, which will be implemented 

in the groundfish harvest specifications and 

management measures for 2011–12. 

currently has the regulatory authority to 

reapportion Pacific whiting, through 50 

CFR 660.323(c). NMFS will consult with 

all sectors of the fishery in determining 

whether and when to reapportion, 

consistent with WCSPA comment. 

Pacific Whiting Stock Status 

The joint U.S.-Canada Stock 

Assessment Review (STAR) panel met 

February 8–10, 2010 in Seattle, 

Washington, to review two draft stock 

assessment documents: one had been 

prepared by Stewart & Hamel (Stock 

Synthesis III model, 2010) and the 

second had been prepared by Martell 

(TINSS, 2010). The Stock Synthesis III 

model is an age-structured stock 

assessment model. Age-structured 

assessment models of various forms 

have been used to assess Pacific whiting 

since the early 1980s. The Stock 

Synthesis III model uses data on total 

fishery landings, fishery length and age 

compositions and survey abundance 

indices. The TINSS model provides an 

age-structured assessment that directly 

estimates management variables C* (the 

maximum sustained yield) and F* (the 

fishing mortality rate that produces C*). 

During its deliberations, the 2010 

STAR panel identified major issues with 

both assessments, namely whether: (a) 

The age and length data from the 

acoustic survey are an accurate 

representation of Pacific whiting; (b) the 

commercial length and conditional 

catch-at-age data are inconsistent with 

the assumptions of the models; and (c) 

the 1986 acoustic survey estimate is 

biased because the pre- and post-survey 

calibrations are substantially different. 

These issues had been raised by past 

STAR panels, and have also been 

reflected in past research 

recommendations. Additionally, the 

2010 Pacific whiting STAR panel 

expressed concern about the reliability 

of the acoustic signal because of the 

presence of Humboldt squid, which has 

an acoustic signal similar to Pacific 

whiting. 

The STAR Panel responded to these 

concerns by identifying a simpler model 

that did not use data it considered 

questionable. This led to two new 

model formulations. The panel 

considered both of these as equally 

acceptable, but adopted the modified 

TINSS model as its base model because 

it had the capacity to provide immediate 

results that quantified uncertainty. 

At the March 2010 Council meeting, 

the Council’s Scientific and Statistical 

Committee (SSC) reviewed and 

discussed both the revised TINSS and 

the original Stock Synthesis III models 

in detail. The SSC was unable to reach 

consensus regarding which model 

formulation reflected the best available 

science for Pacific whiting in 2010, and 

put forth both models as the best 

available science, without assigning 

weights to either. 

In general, Pacific whiting is a very 

productive species with highly variable 

recruitment and a relatively short life 

span when compared to most other 

groundfish species. The base model 

indicates that the Pacific whiting female 

spawning biomass declined rapidly after 

a peak in 1984. The decline continued 

until 2000, and was followed by a brief 

increase to a peak in 2003 as the large 

1999 year class matured (fish spawned 

during a particular year are referred to 

as a year class). 

Acceptable Biological Catch (ABC)/OY 

Recommendations 

From these stock assessments, the 

U.S. OYs analyzed in the FEIS for 2009 

and 2010 specifications and 

management measures varied between a 

low OY of 134,773 mt and a high OY of 

404,318 mt (a U.S.-Canada OY range of 

182,421 mt—547,263 mt). This range 

represents 50 to 150 percent of the 2008 

U.S. OY of 269,545. These broad ranges 

in Pacific whiting harvest levels were 

analyzed in order to assess the potential 

range of the effects of the harvest of 

Pacific whiting on incidentally-caught 

overfished species, and the economic 

effects to coastal communities. 

The final Acceptable Biological Catch 

(ABC) b and OY values recommended by 

the Council for 2010 are based on the 

new stock assessments, and are 

consistent with the U.S.-Canada 

agreement and the impacts considered 

in the FEIS for the 2009 and 2010 

management measures. For this rule, 

ABC is used as defined in the current 

Pacific Coast Groundfish FMP.c

Based on the SSC advice that both 

models be put forward as the best 

available science, and additional input 

from Council advisory bodies and 

public comment, the Council adopted 

both the Pacific whiting stock 

assessments to decide harvest 

specifications for 2010 Pacific whiting 

fisheries. 

Ultimately, for the 2010 Pacific 

whiting fisheries, the Council adopted a 

coastwide (U.S. plus Canada) ABC of 

455,550 mt, which is the average of the 

ABCs estimated in each of the two stock 

assessments adopted by the Council. 

The U.S. share of the ABC is 336,560 mt 

(or 73.88 percent of the coastwide ABC). 

Due to the considerable uncertainty in 

the scientific advice, the Council used a 

more precautionary approach in 

choosing the OY and did not choose the 

average of the two model OYs. The OY 

values from the two models ranged from 

186,000 mt (SS model) to 550,000 mt 

(TINSS model), and the average OY 

between the two models is 368,000 mt. 

Instead of choosing the average, the 

Council started with an OY value of 

339,000 mt from the modified TINSS 

model. The TINSS model estimated the 

harvest rate that produces maximum 

sustained yield of F53%, which is more 

conservative than the proxy FMSY

harvest rate of F40%. The OY estimated 

in that assessment, using the F53% 

harvest rate, is 339,000 mt, and projects 

the stock depletion level to be 31 

percent in 2011, which will maintain 

the stock well above the overfished 

threshold. Next, the Council selected 

the OY value of 186,000 mt from the 

Stock Synthesis III model under an 

F40% harvest rate, which is projected to 

result in a depletion of 25 percent in 

2011. The Council then averaged these 

two OY values, and adopted a coastwide 

OY of 262,500 mt for 2010, which is 

considerably closer to the OY value of 

the more conservative Stock Synthesis 

III model. Under the terms of the U.S.- 

Canada agreement on Pacific whiting, 

the U.S. allocation of the coastwide OY 

is 73.88 percent, which equates to a U.S. 

OY of 193,935 mt. 

Allocations 

Since 1996, NMFS has been allocating 

a portion of the U.S. OY of Pacific 

whiting to the tribal fishery, following 

the process established in 50 CFR 

660.324(d). The tribal allocation is 

subtracted from the total U.S. Pacific 

whiting OY before it is allocated to the 

non-tribal sectors. The tribal Pacific 

whiting fishery is a separate fishery, and 

is not governed by the limited entry or 

open access regulations or allocations. 

To date, only the Makah Tribe has 

prosecuted a tribal fishery for Pacific 

whiting. 

For 2010, both the Makah and 

Quileute have stated their intent to 

participate in the Pacific whiting 

fishery. The Quinault Nation has 

indicated that they plan to participate in 

the 2011 fishery, but not the 2010 

fishery. 

The final rule for the tribal allocation 

in 2010 is not intended to establish any 

precedent for future Pacific whiting 

seasons, or for the long-term tribal 

allocation of whiting. Based on the 

formula for the tribal allocation used in 

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the proposed rule, and taking into 

account public comments received on 

the proposed rule, the tribal allocation 

of Pacific whiting in 2010 is [17.5 

percent * (U.S. OY)] + 16,000 mt. With 

a U.S. OY of 193,935 mt, the tribal 

allocation for the 2010 tribal Pacific 

whiting fishery is 49,939 mt. 

The 2010 commercial (non-tribal) OY 

for Pacific whiting is 140,996 mt. This 

amount was determined by deducting 

from the total U.S. OY of 193,935 mt, 

the 49,939 mt tribal allocation, along 

with 3,000 mt for research catch and 

bycatch in non-groundfish fisheries. 

Regulations at 50 CFR 660.323(a)(2) 

allocate the commercial OY among the 

non-tribal catcher/processor, 

mothership, and shore-based sectors of 

the Pacific whiting fishery. 

The catcher/processor sector is 

comprised of vessels that harvest and 

process Pacific whiting. The mothership 

sector is comprised of motherships and 

catcher vessels that harvest Pacific 

whiting for delivery to motherships. 

Motherships are vessels that process, 

but do not harvest, Pacific whiting. The 

shoreside sector is comprised of vessels 

that harvest Pacific whiting for delivery 

to shoreside processors. Each sector 

receives a portion of the commercial 

OY, with the catcher/processors getting 

34 percent (or 47,939 mt for 2010), 

motherships getting 24 percent (or 

33,839 mt for 2010), and the shore-based 

sector getting 42 percent (or 59,218 mt 

for 2010). The fishery south of 42°N. lat. 

may not take more than 2,961 mt (5 

percent of the shore-based allocation) 

prior to the start of the primary Pacific 

whiting season North of 42°N. lat. 

Bycatch Limit Adjustments 

Bycatch limits have been used to 

restrict the catch of overfished species, 

particularly canary, darkblotched and 

widow rockfish, in the non-tribal Pacific 

whiting fisheries. With bycatch limits, 

the industry has the opportunity to 

harvest a larger Pacific whiting OY, 

provided the incidental catch of these 

overfished species does not exceed the 

adopted bycatch limits. 

Since 2005, a single bycatch limit for 

darkblotched, canary and widow 

rockfish species has been used for all 

commercial sectors of the fishery. 

However, beginning in 2009, concern 

that bycatch in one sector would result 

in the closure of a different sector of the 

fishery led to the implementation of 

sector-specific bycatch limits, rather 

than a single bycatch limit, for all 

commercial sectors (74 FR 9874, March 

6, 2009). This practice is continued in 

2010. 

If a sector-specific bycatch limit is 

reached, or is projected to be reached, 

the Pacific whiting fishery for that 

sector will be closed, regardless of 

whether the Pacific whiting allocation 

has been achieved. When a sector is 

closed because a bycatch limit has been 

reached or was projected to be reached, 

unused amounts of the other bycatch 

limit species will be rolled-over to the 

remaining sectors of the non-tribal 

Pacific whiting fishery. If a sector 

reaches its Pacific whiting allocation, 

unused amounts of bycatch limit 

species will be shifted to those sectors 

of the non-tribal Pacific whiting fishery 

that remain open. Sector-specific 

bycatch limits are apportioned in the 

same percentages used to calculate the 

original sector Pacific whiting 

allocations. 

During the development of the 2009– 

2010 specifications and management 

measures, the non-tribal Pacific whiting 

fishery bycatch limits were 

preliminarily set at 18 mt for canary 

rockfish, 25 mt for darkblotched 

rockfish, and 450 mt for widow rockfish 

(74 FR 9874, March 6, 2009). The final 

2009 widow rockfish bycatch limit for 

the non-tribal Pacific whiting fishery 

was reduced to 250 mt, due to higher 

projected catch of widow rockfish in the 

non-Pacific whiting fisheries and the 

need to keep the total projected widow 

rockfish catch below the 2009 OY of 522 

mt. The best available data at the March 

2010 Council meeting indicated that 

there is an increasing trend in the 

bycatch rate for widow rockfish in the 

non-tribal Pacific whiting fishery and, 

given the higher 2010 Pacific whiting 

OY, the Council recommended 

increasing the widow rockfish bycatch 

limit for 2010. The 279 mt widow 

rockfish bycatch limit for 2010 is based 

on a linear interpolation of the bycatch 

rates for widow rockfish from 2006– 

2009. From the overall bycatch limit of 

279 mt, the following sector-specific 

bycatch limits are established for widow 

rockfish: The catcher/processors 

bycatch limit is increased from 85.0 mt 

to 95.0 mt; the mothership bycatch limit 

is increased from 60.0 mt to 67.0 mt; 

and the shorebased bycatch limit is 

increased from 105.0 mt to 117.0 mt. 

The 2009 canary rockfish bycatch 

limit was 18.0 mt. The 2009 canary 

bycatch limit was approximately 12 mt 

higher than it had been in the previous 

four years. The bycatch limit was 

increased for 2009–2010, based on the 

much higher canary rockfish harvest 

specifications for that period. The best 

available data at the March 2010 

Council meeting indicated that there is 

an increasing trend in the bycatch rate 

for canary rockfish in the non-tribal 

whiting fishery. However, based on (1) 

The latest understanding of canary 

biomass from the most recent 

assessment (biomass is lower than 

previously thought), (2) that only 17 

percent of the 2009 bycatch limit was 

caught, and (3) that the non-Pacific 

whiting fisheries would need to be 

further limited to keep the projected 

impacts to canary rockfish below the 

2010 OY of 105 mt if the 18 mt bycatch 

limit was not reduced, the Council 

recommended decreasing the canary 

rockfish bycatch limit for 2010. The 

2010 canary rockfish bycatch limit of 14 

mt is based on the need to balance an 

increasing canary rockfish bycatch rate 

in the non-tribal Pacific whiting fishery 

with the needs of the non-Pacific 

whiting sectors. From the overall 

bycatch limit of 14 mt, the following 

sector-specific bycatch limits are 

established for canary rockfish: The 

catcher/processors bycatch limit is 

decreased from 6.1 mt to 4.8 mt; the 

mothership bycatch limit is decreased 

from 4.3 mt to 3.3 mt; and the shorebased bycatch limit is decreased from 

7.6 mt to 5.9 mt. 

At their March 2010 meeting, the 

Council also considered revising the 

darkblotched rockfish bycatch limits, 

but found no reason to revise them 

before the start of the 2010 season. 

Classification 

The final Pacific whiting 

specifications and management 

measures for 2010 are issued under the 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act), and the 

Pacific Whiting Act of 2006, and are in 

accordance with 50 CFR part 660, 

subpart G, the regulations implementing 

the FMP. The Administrator, Northwest 

Region, NMFS, has determined that this 

rule is consistent with the national 

standards of the Magnuson-Stevens Act 

and other applicable laws. 

Pursuant to the Administrative 

Procedure Act, 5 U.S.C. 553(b)(B), 

NMFS finds good cause to waive prior 

public notice and comment on the 2010 

Pacific whiting specifications. NMFS 

also finds good cause to waive the 30- 

day delay in effectiveness pursuant to 5 

U.S.C. 553(d)(3), so that this final rule 

may become effective as soon as 

possible after April 1, 2010, the typical 

fishery start date. 

These waivers are necessary and in 

the public interest. The FMP requires 

that fishery specifications be evaluated 

periodically using the best scientific 

information available. Every year, 

NMFS conducts a Pacific whiting stock 

assessment in which U.S. and Canadian 

scientists cooperate. The 2010 stock 

assessment for Pacific whiting was 

prepared in early 2010, which is the 

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optimal time of year to conduct stock 

assessments for this species. New 2009 

data used in this assessment that were 

not available until January, 2010 

include: updated total catch; length and 

age data from the U.S. and Canadian 

fisheries; and biomass indices from the 

Joint US–Canadian acoustic/midwater 

trawl surveys. Pacific whiting differs 

from other groundfish species in that it 

has a shorter life span and the 

population fluctuates more swiftly. 

Thus, it is important to use the most 

recent stock assessment for Pacific 

whiting when determining ABC and 

OY. Because of the timing of obtaining 

the data and conducting the assessment, 

the results of Pacific whiting stock 

assessments are not available for use in 

developing the new ABC and OY until 

just before the Council’s annual March 

meeting. The new Pacific whiting 

season begins in April 2010. Thus, if the 

actions in this final rule are to be 

implemented early in this fishing 

season, affording the time necessary for 

prior notice and opportunity for public 

comment would prevent the agency 

from managing the Pacific whiting and 

related fisheries using the best available 

science. 

Moreover, delaying this rule would 

leave in place the harvest specifications 

and bycatch limits from the 2009 

fishery. Through setting lower bycatch 

limits, this rule is intended to ensure 

that the rebuilding OYs for 

darkblotched, canary and widow 

rockfish are not exceeded. Without 

these lower limits, these rebuilding OY 

levels could be exceeded, contrary to 

the requirements of the MagnusonStevens Act and the Groundfish FMP. 

This would be contrary to not only the 

interest of the fishing communities, but 

to the public at large. Additionally, 

failing to implement the higher Pacific 

whiting harvest specifications as early 

as possible in 2010 could prevent the 

tribal and non-tribal fisheries from 

attaining their higher allocations, and 

thus would result in unnecessary shortterm adverse economic effects for the 

Pacific whiting fishing vessels and the 

associated fishing communities. 

The environmental impacts associated 

with the Pacific whiting harvest levels 

being adopted by this action are 

consistent with the impacts in the FEIS 

for the 2009–2010 specification and 

management measures. In approving the 

2009–2010 groundfish harvest 

specifications and management 

measures, NMFS issued a Record of 

Decision (ROD). The ROD was signed on 

February 23, 2009. Copies of the FEIS 

and the ROD are available from the 

Council (see ADDRESSES). 

Pursuant to the Regulatory Flexibility 

Act (RFA), 5 U.S.C. 601 et seq., NMFS 

prepared an Initial Regulatory 

Flexibility Analysis (IRFA) and FRFA 

for the 2009–2010 harvest specifications 

and management measures. These 

analyses included the regulatory 

impacts of this action on small entities. 

The IRFA was summarized in the 

proposed rule published on December 

31, 2008 (73 FR 80516). A summary of 

the FRFA analysis, which covers the 

entire groundfish regulatory scheme of 

which this is a part, was published in 

the final rule on March 6, 2009 (74 FR 

9874). An IRFA was also prepared for 

the proposed rule on the tribal fishery 

for Pacific whiting in 2010. This 

proposed rule was published on March 

12, 2010 (75 FR 11829). A FRFA for that 

rule was also prepared, and a summary 

of that FRFA is contained below. A copy 

of this analysis is available from NMFS 

(see ADDRESSES). The need for and 

objectives of this final rule are 

contained in the SUMMARY and in the 

Background section under 

SUPPLEMENTARY INFORMATION. 

The final 2009–2010 specifications 

and management measures were 

intended to allow West Coast 

commercial and recreational fisheries 

participants to fish the harvestable 

surplus of more abundant stocks, while 

also ensuring that those fisheries do not 

exceed the allowable catch levels 

intended to rebuild and protect 

overfished stocks. The ABCs and OYS 

follow the guidance of the MagnusonStevens Act, the national standard 

guidelines, and the FMP for protecting 

and conserving fish stocks. Fishery 

management measures include trip and 

bag limits, size limits, time/area 

closures, gear restrictions, and others 

intended to allow year-round West 

Coast groundfish landings, without 

compromising overfished species 

rebuilding measures. 

In recent years the number of 

participants engaged in the Pacific 

whiting fishery has varied with changes 

in the Pacific whiting OY and economic 

conditions. Pacific whiting shoreside 

vessels (26 to 29), mothership 

processors (4 to 6), mothership catcher 

vessels (11–20), catcher/processors (5 to 

9), Pacific whiting shoreside first 

receivers (8–16), and five tribal trawlers 

are the major units of this fishery. For 

2010, an additional one to two tribal 

trawlers may enter the fishery. NMFS 

records suggest the gross annual 

revenue for each of the catcher/ 

processor and mothership operations on 

the Pacific coast exceeds $4,000,000. 

Therefore, they are not considered small 

businesses. NMFS records also show 

that 10–43 catcher vessels have taken 

part in the mothership fishery yearly 

since 1994. These companies are all 

assumed to be small businesses as 

defined by the RFA (although some of 

these vessels may be affiliated with 

larger processing companies). Since 

1994, 26–31 catcher vessels participated 

in the shoreside fishery annually. These 

companies are all assumed to be small 

businesses (although some of these 

vessels may be affiliated to larger 

processing companies). Tribal trawlers 

are presumed to be small entities, 

whereas the Tribes are presumed to be 

small government jurisdictions. 

In 2008, these participants harvested 

about 248,000 tons of Pacific whiting, 

worth about $63 million in ex-vessel 

value, based on shoreside ex-vessel 

prices of $254 per ton—the highest exvessel revenues and prices on record. In 

comparison, the 2007 fishery harvested 

about 224,000 tons, worth $36 million at 

an average ex-vessel price of about $160 

per ton. From 2003–2007, estimated 

Pacific whiting ex-vessel values 

averaged about $29 million. 

Seafood processors convert Pacific 

whiting into surimi, fillets, fish meal, 

and headed gutted products. Besides 

recent high OY levels, ex-vessel 

revenues have been increasing due to 

increased prices for headed and gutted 

Pacific whiting. From 2004–2007, 

wholesale prices for headed and gutted 

Pacific whiting product increased from 

about $1,200 per ton, to $1,600 per ton. 

In 2008, wholesale prices averaged 

$1,980 per ton according to U.S. Export 

Trade statistics. Fuel prices, a major 

expense for Pacific whiting vessels, also 

increased dramatically. For example, at 

the start of the primary fishery in June 

2008 fuel prices were about $4.30 per 

gallon, compared to June 2007 levels of 

$2.70 per gallon. 

In 2009, wholesale headed gutted 

prices fell slightly to $1,950 per ton. 

Fuel prices, a major expense for Pacific 

whiting vessels, continued to fluctuate. 

However, by 2009, these prices fell from 

their June, 2008 high to about $2.32 per 

gallon. 

The fisheries’ ability to harvest the 

entire 2010 Pacific whiting OY will 

depend on how well the industry stays 

within the overfished species bycatch 

limits. For example, in 2008 the Pacific 

whiting shoreside fishery was closed 

prematurely because of overfished 

species bycatch issues, leaving a major 

portion its allocation unharvested. 

Although NMFS transferred the 

unharvested allocations to the other 

nontribal fleets, by year’s end, 7 percent 

of the 2008 Pacific whiting OY 

remained unharvested. In 2009, the exvessel price of Pacific whiting averaged 

about $115 per ton. Based on this price, 

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if the total amount of Pacific whiting 

available to the tribal and non-tribal 

commercial fisheries is harvested in 

2010, the revenues generated would 

approach $22 million—a potential 

increase over the $14 million generated 

in 2009. 

Pursuant to Executive Order 13175, 

this action was developed after 

meaningful consultation and 

collaboration with tribal officials from 

the area covered by the FMP. Under the 

Magnuson-Stevens Act, 16 U.S.C. 

1852(b)(5), one of the voting members of 

the 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 

FMP establish a procedure by which the 

tribes with treaty fishing rights in the 

area covered by the FMP request, in 

writing, new allocations or regulations 

specific to the tribes before the first of 

the two meetings at which the Council 

considers groundfish management 

measures. Both the Makah and Quileute 

Tribes requested a Pacific whiting 

allocation for 2009. The regulations at 

50 CFR 660.324(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.’’ 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

List of Subjects in 50 CFR Part 660 

Fisheries, Fishing, and Indian 

fisheries. 

Dated: April 29, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 660 is amended 

as follows: 

PART 660—FISHERIES OFF WEST 

COAST STATES 

■ 1. The authority citation for part 660 

is amended to read as follows: 

Authority: 16 U.S.C. 1801 et seq. and 16 

U.S.C. 7001 et seq. 

■ 2. In § 660.373 paragraph (b)(4)(i) is 

revised to read as follows: 

§ 660.373 Pacific whiting (whiting) fishery 

management. 

* * * * * 

(b) * * * 

(4) * * * 

(i) The whiting fishery bycatch limit 

is apportioned among the sectors 

identified in paragraph (a) of this 

section based on the same percentages 

used to allocate whiting among the 

sectors, established in § 660.323(a). The 

sector specific bycatch limits are: for 

catcher/processors 4.8 mt of canary 

rockfish, 95 mt of widow rockfish, and 

8.5 mt of darkblotched rockfish; for 

motherships 3.3 mt of canary rockfish, 

67 mt of widow rockfish, and 6.0 mt of 

darkblotched rockfish; and for shorebased 5.9 mt of canary rockfish, 117 mt 

of widow rockfish, and 10.5 mt of 

darkblotched rockfish. 

* * * * * 

■ 3. In § 660.385 paragraph (e) is revised 

to read as follows: 

§ 660.385 Washington coastal tribal 

fisheries management measures. 

* * * * * 

(e) Pacific whiting—The tribal 

allocation for 2010 is 49,939 mt. 

* * * * * 

■ 4. Revise Table 2a to Part 660, Subpart 

G, and footnotes ‘‘/f’’ and ‘‘/q’’ following 

Tables 2a through 2c to Part 660, 

Subpart G to read as follows: 

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* * * * * fPacific whiting—The most recent stock 

assessment was prepared in January 2010. 

The stock assessment base model estimated 

the Pacific whiting biomass to be at 31 

percent (50th percentile estimate of 

depletion) of its unfished biomass in 2010. 

The U.S.-Canada coastwide ABC is 455,550 

mt, the U.S. share of the ABC is 336,560 mt 

(73.88 percent of the coastwide ABC). The 

U.S.-Canada coastwide Pacific whiting OY is 

262,500 mt, with a corresponding U.S. OY of 

193,935 mt. The tribal allocation is 49,939 

mt. The amount estimated to be taken as 

research catch and in non-groundfish 

fisheries is 3,000 mt. The commercial OY is 

140,996 mt. Each sector receives a portion of 

the commercial OY, with the catcher/ 

processors getting 34 percent (47,939 mt), 

motherships getting 24 percent (33,839 mt), 

and the shore-based sector getting 42 percent 

(59,218 mt). No more than 2,961 mt (5 

percent of the shore-based allocation) may be 

taken in the fishery south of 42° N. lat. prior 

to the start of the primary season for the 

shorebased fishery north of 42° N. lat. 

* * * * * qWidow rockfish was assessed in 2005, 

and an update was prepared in 2007. The 

stock assessment update estimated the stock 


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to be at 36.2 percent of its unfished biomass 

in 2006. The ABC of 6,937 mt is based on the 

stock assessment update with an F50% 

FMSY proxy. The OY of 509 mt is based on 

a rebuilding plan with a target year to rebuild 

of 2015 and an SPR harvest rate or 95 

percent. To derive the commercial harvest 

guideline of 447.4 mt, the OY is reduced by 

1.1 mt for the amount anticipated to be taken 

during research activity, 45.5 mt for the tribal 

set-aside, 7.2 mt the amount estimated to be 

taken in the recreational fisheries, 0.4 mt for 

the amount expected to be taken incidentally 

in non-groundfish fisheries, and 7.4 mt for 

EFP fishing activities. 

* * * * * 

[FR Doc. 2010–10403 Filed 4–29–10; 4:15 pm] 

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