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Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Proposed Rules
allocation. In order to ensure Treaty Tribes continue to receive allocations, this rule proposes the 2021 tribal allocation of Pacific whiting. This allocation is not intended to set precedent for future allocations.
In exchanges between NMFS and the Treaty Tribes during November and December 2020, the Makah Tribe indicated their intent to participate in the tribal Pacific whiting fishery in 2021
and requested 17.5 percent of the U.S.
TAC. The Quinault Indian Nation, Quileute Indian Tribe and Hoh Indian Tribe informed NMFS in December 2020 that they will not participate in the 2021 fishery. NMFS will contact the Tribes during the proposed rule comment period to refine the 2021
allocation before allocating the final U.S. TAC between the tribal and nontribal whiting fisheries. NMFS proposes a tribal allocation that accommodates the tribal request, specifically 17.5
percent of the U.S. TAC. NMFS has determined that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock indicates the 17.5 percent is within the range of the tribal treaty right to Pacific whiting.
The JMC is anticipated to recommend the overall and corresponding U.S./
Canada TACs no later than March 25, 2021. The U.S. TAC is 73.88 percent of the overall TAC. Until this TAC is set, NMFS cannot propose a specific amount for the tribal allocation. The Pacific TABLE 1U.S. TOTAL ALLOWABLE
whiting fishery begins on May 15, and CATCH AND ANNUAL TRIBAL ALLOwe expect to publish the final rule to set CATION IN METRIC TONS
Pacific whiting specifications for 2021
by early May. Therefore, to allow for mt public input on the tribal allocation, Tribal allocation NMFS is issuing this proposed rule Year U.S. TAC 1
without the final 2021 TAC. However, 2010 193,935 mt 49,939 mt.
to provide a basis for public input, 2011 290,903 mt 66,908 mt.
NMFS is describing a range of potential 2012 186,037 mt 48,556 mt.
tribal allocations in this proposed rule 2013 269,745 mt 63,205 mt.
by applying the proposed tribal 2014 316,206 mt 55,336 mt.
allocation to a range of potential TACs 2015 325,072 mt 56,888 mt.
derived from past harvest levels.
2016 367,553 mt 64,322 mt.
2017 441,433 mt 77,251 mt.
In order to project a range of potential 2018 441,433 mt 77,251 mt.
tribal allocations for 2021, we applied 2019 441,433 mt 77,251 mt.
the proposed tribal allocation of 17.5
2020 424,810 mt 74,342 mt.
percent to the range of U.S. TACs over 1 Beginning in 2012, the United States startthe last 10 years, 2011 through 2020
ed using the term Total Allowable Catch, or plus or minus 25 percent to capture TAC, based on the Agreement between the variability in stock abundance. The Government of the United States of America and the Government of Canada on Pacific range of U.S. TACs in that time period Hake/Whiting. Prior to 2012, the terms Optimal was 186,037 mt 2012 to 441,433 mt Yield OY and Annual Catch Limit ACL were 2017, 2018 and 2019. Applying the 25
used.
percent variability results in a range of In 2009, NMFS, the states of potential TACs of 139,527 mt to 551,791
Washington and Oregon, and the Treaty mt for 2021. Using the proposed tribal Tribes started a process to determine the allocation of 17.5 percent, the potential long-term tribal allocation for Pacific range of the tribal allocations for 2021
whiting. However, these groups have would be between 24,417 mt; and not yet determined a long-term 96,563 mt.

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

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Non-Tribal Research and Bycatch SetAsides The U.S. non-tribal whiting fishery is managed under the Councils Pacific Coast Groundfish FMP. Each year, the Council recommends the amount of Pacific whiting to accommodate incidental mortality of Pacific whiting in research activities and nongroundfish fisheries based on estimates of scientific research catch and estimated bycatch mortality in nongroundfish fisheries. At its November 2020 meeting, the Council recommended an incidental mortality set-aside of 750 mt for 2021. This is a reduction of the amount set-aside for research and incidental mortality from 1,500 mt in 2020. The 750 mt recommendation, however, reflects the recent 3 year average mortality that has declined from 942 mt in 20142016 to 216 mt in 20172019. This rule proposes the Councils recommendations.
This proposed rule would be implemented under the statutory and regulatory authority of section 304b and 305d of the Magnuson-Stevens Act, and the Pacific Whiting Act of 2006. With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Treaty Tribes to fish in their usual and accustomed grounds and stations in common with non-tribal citizens.
United States v. Washington, 384 F.
Supp. 313 W.D. 1974.
Classification Pursuant to section 304b1A and 305d of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. In making its final determination, NMFS
will take into account the complete record, including the data, views, and comments received during the comment period.
Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the Pacific Coast Groundfish FMP. Under the MagnusonStevens Act at 16 U.S.C. 1852b5, 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 Councils jurisdiction. In addition, regulations implementing the Pacific
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