[Federal Register Volume 78, Number 43 (Tuesday, March 5, 2013)]
[Proposed Rules]
[Pages 14259-14263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04922]



[[Page 14259]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 130114034-3034-01]
RIN 0648-BC93


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; 2013 Tribal Fishery for Pacific 
Whiting

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule for the 2013 Pacific whiting 
fishery under the authority of the Pacific Coast Groundfish Fishery 
Management Plan (FMP), the Magnuson Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 
2006. This proposed rule would establish a formula, specifically [17.5 
percent * (U.S. Total Allowable Catch)] plus 16,000 metric tons (mt), 
for determining the Pacific whiting tribal allocation for 2013 for 
Pacific Coast Indian tribes that have a Treaty right to harvest 
groundfish.

DATES: Comments on this proposed rule must be received no later than 
April 4, 2013.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2013-0013 by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0013; click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: William W. Stelle, Jr., Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070, Attn: Kevin C. Duffy.
     Fax: 206-526-6736, Attn: Kevin C. Duffy.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Kevin C. Duffy (Northwest Region, 
NMFS), phone: 206-526-4743, fax: 206-526-6736 and email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This proposed rule is accessible via the Internet at the Office of 
the Federal Register Web site at  https://www.federalregister.gov. 
Background information and documents are available at the NMFS 
Northwest Region Web site at http://www.nwr.noaa.gov/Groundfish/Groundfish-Fishery- Management/Whiting-Management and at the Pacific 
Fishery Management Council's Web site at http://www.pcouncil.org/.

Background

    The regulations at 50 CFR 660.50(d) establish the process by which 
the tribes with treaty fishing rights in the area covered by the FMP 
request new allocations or regulations specific to the tribes, in 
writing, during the biennial harvest specifications and management 
measures process. The regulations state that ``the Secretary will 
develop tribal allocations and regulations under this paragraph in 
consultation with the affected tribe(s) and, insofar as possible, with 
tribal consensus.'' The procedures NOAA employs in implementing tribal 
treaty rights under the FMP, in place since May 31, 1996, were designed 
to provide a framework process by which NOAA Fisheries can accommodate 
tribal treaty rights by setting aside appropriate amounts of fish in 
conjunction with the Pacific Fishery Management Council (Council) 
process for determining harvest specifications and management measures. 
The Council's groundfish fisheries require a high degree of 
coordination among the tribal, state, and federal co-managers in order 
to rebuild overfished species and prevent overfishing, while allowing 
fishermen opportunities to sustainably harvest over 90 species of 
groundfish managed under the FMP.
    Since 1996, NMFS has been allocating a portion of the U.S. total 
allowable catch (TAC) (called Optimum Yield (OY) or Annual Catch Limit 
(ACL) prior to 2012) of Pacific whiting to the tribal fishery, 
following the process established in 50 CFR 660.50(d). The tribal 
allocation is subtracted from the U.S. Pacific whiting TAC before 
allocation to the non-tribal sectors.
    To date, only the Makah Tribe has prosecuted a tribal fishery for 
Pacific whiting. The Makah Tribe has annually harvested a whiting 
allocation every year since 1996 using midwater trawl gear. Since 1999, 
the tribal allocation has been made in consideration of their 
participation in the fishery. In 2008 the Quileute Tribe and Quinault 
Indian Nation expressed an interest in commencing participation in the 
whiting fishery. Tribal allocations for 2009-2012 were based on 
discussions with all three tribes regarding their intent for those 
fishing years. The table below provides a history of U.S. OYs/ACLs and 
the annual tribal allocation in metric tons (mt).

------------------------------------------------------------------------
                                                             Tribal
             Year                      U.S. OY             allocation
------------------------------------------------------------------------
2000.........................  232,000 mt............  32,500 mt.
2001.........................  190,400 mt............  27,500 mt.
2002.........................  129,600 mt............  22,680 mt.
2003.........................  148,200 mt............  25,000 mt.
2004.........................  250,000 mt............  32,500 mt.
2005.........................  269,069 mt............  35,000 mt.
2006.........................  269,069 mt............  32,500 mt.
2007.........................  242,591 mt............  35,000 mt.
2008.........................  269,545 mt............  35,000 mt.
2009.........................  135,939 mt............  50,000 mt.
2010.........................  193,935 mt............  49,939 mt.
2011.........................  290,903 mt............  66,908 mt.
2012.........................  186,037 mt TAC \1\....  48,556 mt.
------------------------------------------------------------------------
\1\ Beginning in 2012, the United States started using the term Total
  Allowable Catch, based on the Agreement between the Government of the
  United States of America and the Government of Canada on Pacific Hake/
  Whiting.

    In exchanges between NMFS and the tribes during December 2012, and 
again in January, 2013, the Makah and Quileute tribes indicated their 
intent to participate in the tribal whiting fishery in 2013. The 
Quinault Indian Nation indicated that they are not planning to 
participate in 2013, but reserved the right to participate if 
circumstances changed. The Hoh tribe has not expressed an interest in 
participating to date.
    Since 2008, NMFS and the co-managers, including the States of 
Washington and Oregon, as well as the Treaty tribes, have been involved 
in a process designed to determine the long-term tribal allocation for 
Pacific whiting. At the September 2008 Council meeting, NOAA, the 
states and the Quinault, Quileute, and Makah tribes met and agreed on a 
process in which NOAA would provide to the tribes and states of 
Washington and Oregon a

[[Page 14260]]

summary of the current scientific information regarding whiting, 
receive comment on the information and possible analyses that might be 
undertaken, and then prepare analyses of the information to be used by 
the co-managers (affected tribes, affected states, and NMFS) in 
developing a tribal allocation for use in 2010 and beyond. The goal was 
agreement among the co-managers on a long-term tribal allocation for 
incorporation into the Council's planning process for the 2010 season. 
An additional purpose was to provide the tribes the time and 
information to develop an inter-tribal allocation or other necessary 
management agreement. In 2009, NMFS shared a preliminary report 
summarizing scientific information available on the migration and 
distribution of Pacific whiting on the west coast. The co-managers met 
in 2009 and discussed this preliminary information.
    In 2010, NMFS finalized the report summarizing scientific 
information available on the migration and distribution of Pacific 
whiting on the West Coast. In addition, NMFS responded in writing to 
requests from the tribes for clarification on the paper and requests 
for additional information. NMFS also met with each of the tribes in 
the fall of 2010 to discuss the report and to discuss a process for 
negotiation of the long-term tribal allocation of Pacific whiting.
    In 2011, NMFS again met individually with the Makah, Quileute, and 
Quinault tribes to discuss these matters. Due to the detailed nature of 
the evaluation of the scientific information, and the need to negotiate 
a long-term tribal allocation following completion of the evaluation, 
the process continued in 2012 and will not be completed prior to the 
2013 Pacific whiting fishery; thus the tribal allocation of whiting for 
2013 will not reflect a negotiated long-term tribal allocation. 
Instead, it is an interim allocation not intended to set precedent for 
future allocations.

Tribal Allocation for 2013

    It is necessary to propose a range for the tribal allocation, 
rather than a specific allocation amount, because the specific 
allocation depends on the amount of the coastwide TAC (United States 
plus Canada) and corresponding U.S. TAC for 2013 (73.88% of the 
coastwide TAC). The Joint Management Committee (JMC), which was 
established pursuant to the Agreement between the Government of the 
United States of America and the Government of Canada on Pacific Hake/
Whiting (the Agreement), is anticipated to recommend the coastwide and 
corresponding U.S./Canada TACs no later than March 25, 2013.
    In order for the public to have an understanding of the potential 
tribal whiting allocation in 2013, NMFS is using the range of U.S. TACs 
over the last ten years, 2003 through 2012, to project a range of 
potential tribal allocations for 2013. This range of TACs is 148,200 mt 
(2003) to 290,903 mt (2011).
    As described above, the Makah tribe and Quileute Indian Nation have 
stated their intent to participate in the Pacific whiting fishery in 
2013. The Makah tribe has requested 17.5% of the U.S. TAC, and the 
Quileute Indian Nation has requested 16,000 mt. Accommodating both 
requests results in a formula [17.5 percent* (U.S. TAC)] + 16,000 mt 
for application to the range of TACs. Application of this formula to 
the range of U.S. TACs over the last ten years results in a tribal 
allocation of between 41,935 and 66,906 mt for 2013. At the lower end 
of the range of U.S. TACs, this tribal allocation would represent 28 
percent of the U.S. TAC, and at the higher end of the range, this 
tribal allocation would represent 23 percent of the U.S. TAC. NMFS 
believes that the current scientific information regarding the 
distribution and abundance of the coastal Pacific whiting stock 
suggests that these percentages are within the range of the tribal 
treaty right to Pacific whiting.
    As described earlier, NOAA Fisheries proposes this rule as an 
interim allocation for the 2013 tribal Pacific whiting fishery. As with 
past allocations, this proposed rule is not intended to establish any 
precedent for future whiting seasons or for the long-term tribal 
allocation of whiting.
    The rule would be implemented under authority of Section 305(d) of 
the Magnuson-Stevens Act, which gives the Secretary responsibility to 
``carry out any fishery management plan or amendment approved or 
prepared by him, in accordance with the provisions of this Act.'' 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 Northwest 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

    NMFS has preliminarily determined that the management measures for 
the 2013 Pacific whiting tribal fishery are consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. In making the final determination, NMFS will take into account 
the data, views, and comments received during the comment period.
    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A summary of 
the analysis follows. A copy of this analysis is available from NMFS 
and is published on the NMFS Web site under Groundfish Management (see 
ADDRESSES).
    Under the RFA, the term ``small entities'' includes small 
businesses, small organizations, and small governmental jurisdictions. 
The Small Business Administration has established size criteria for all 
different industry sectors in the U.S., including fish harvesting and 
fish processing 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 less than $4.0 million for 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 500 or fewer persons at all its 
affiliated operations worldwide. A business involved in both the 
harvesting and processing of seafood products is a small business if it 
meets the $4.0 million criterion for fish harvesting operations. A 
wholesale business servicing the fishing industry is a small business 
if it employs 100 or fewer persons at all its affiliated operations 
worldwide. For marinas and charter/party boats, a small business is a 
business with annual receipts less than $7.0 million. For nonprofit 
organizations, the RFA defines a small organization as any nonprofit 
enterprise that is independently owned and operated and is not dominant 
in its field. The RFA defines small governmental jurisdictions as 
governments of cities, counties, towns, townships, villages, school 
districts, or special districts with populations of less than 50,000.
    For the years 2007 to 2011, the total whiting fishery (tribal and 
non-tribal) has averaged harvests of 199,000 mt annually, worth $37 
million in terms of ex-vessel revenues. As the U.S. OY/ACL has been 
highly variable during this time, so have harvests. During this

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period, harvests have ranged from 122,000 mt (2009) to 248,000 mt 
(2008). In 2011, the harvest was approximately 231,000 mt. Ex-vessel 
revenues have also varied. Annual ex-vessel revenues have ranged from 
$16 million (2009) to $58 million (2008). Ex-vessel revenues in 2011 
were about $53 million.
    The prices for whiting are largely determined by the world market 
for groundfish, because most of the whiting harvested is exported. 
Average ex-vessel price for trawl harvested whiting in 2011 was $230 
per mt. For 2012, average ex-vessel prices increased to $309 per mt, 
leading to $49 million in ex-vessel revenues based on total harvests of 
about 160,000 mt. Note that the use of ex-vessel values does not take 
into account the wholesale or export value of the fishery or the costs 
of harvesting and processing whiting into a finished product. NMFS does 
not have sufficient information to make a complete assessment of these 
values.
    The Pacific whiting fishery harvests almost exclusively Pacific 
whiting. While bycatch of other species occurs, the fishery is 
constrained by bycatch limits on key overfished species. This is a 
high-volume fishery with low ex-vessel prices per pound. This fishery 
also has seasonal aspects based on the distribution of whiting off the 
west coast.
    Since 1996, there has been a tribal allocation of the U.S. whiting 
TAC. There are four tribes associated with the whiting fishery: Hoh, 
Makah, Quileute, and Quinault.
    This rule would establish the formula for determining 2013 interim 
tribal allocation. The alternatives are ``No-Action'' vs. the 
``Proposed Action.'' The proposed allocation, based on discussions with 
the tribes, is for NMFS to allocate between 28 percent and 23 percent 
of the U.S. total allowable catch for 2013. NMFS did not consider a 
broader range of alternatives to the proposed allocation. The tribal 
allocation is based primarily on the requests of the tribes. These 
requests reflect the level of participation in the fishery that will 
allow them to exercise their treaty right to fish for whiting. 
Consideration of amounts lower than the tribal requests 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, and the participating tribe has on 
occasion shown an ability to harvest the amount of whiting requested. A 
higher allocation would, arguably, also be within the scope of the 
treaty right. However, a higher allocation would unnecessarily limit 
the non-tribal fishery. A no-action alternative was considered, but the 
regulatory framework provides for a tribal allocation on an annual 
basis only. Therefore, no action would result in no allocation of 
Pacific whiting to the tribal sector in 2013, which would be 
inconsistent with NMFS' responsibility to manage the fishery consistent 
with the tribes' treaty rights. Given that there are tribal requests 
for allocations in 2013, this alternative received no further 
consideration.
    This proposed rule would affect how whiting is allocated to the 
following sectors/programs: Tribal, Shorebased Individual Fishing Quota 
(IFQ) Program--Trawl Fishery, Mothership Coop (MS) Program--Whiting At-
sea Trawl Fishery, and Catcher-Processor (C/P) Coop Program--Whiting 
At-sea Trawl Fishery. The amount of whiting allocated to these sectors 
is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting 
that account for research catch and for bycatch in other fisheries are 
deducted. The amount of the tribal allocation is also deducted directly 
from the TAC. After accounting for these deductions, the remainder is 
the commercial harvest guideline. This guideline is then allocated 
among the other three sectors as follows: 34 percent for the C/P Coop 
Program; 24 percent for the MS Coop Program; and 42 percent for the 
Shorebased IFQ Program.
    The shorebased IFQ fishery is managed with individual fishing 
quotas for most groundfish species, including whiting. Annually quota 
pounds (QP) are allocated from the shorebased sector allocation based 
on the individual quota shares (QS) of each QS owner. (QP is expressed 
as a weight and QS is expressed as a percent of the shorebased 
allocation for a given species or species group.) QP may be transferred 
from a QS account to a vessel account or from one vessel account to 
another vessel account. Vessel accounts are used to track how QP is 
harvested (landings and discards) by limited entry trawl vessels of all 
IFQ species/species groups. Shorebased IFQ catch must be landed at 
authorized first receiver sites.
    The IFQ whiting quota shares (QS) were allocated to a mixture of 
limited entry permit holders and shorebased processors. One non-profit 
organization received quota share based on the ownership of multiple 
limited entry permits. The MS coop sector can consist of one or more 
coops and a non-coop subsector. For a MS coop to participate in the 
Pacific whiting fishery, it must be composed of MS catcher-vessel (MS/
CV) endorsed limited entry permit owners. Each permitted MS coop is 
authorized to harvest a quantity of Pacific whiting based on the sum of 
the catch history assignments for each member's MS/CV-endorsed permit 
identified in the NMFS-accepted coop agreement for a given calendar 
year. Each MS/CV endorsed permit has an allocation of Pacific whiting 
catch based on its catch history in the fishery. The catch history 
assignment (CHA) is expressed as a percentage of Pacific whiting of the 
total MS sector allocation. Currently the MS sector is composed of only 
a single coop. (Shorebased IFQ QS and MS sector CHA are not scheduled 
to begin trading until 2014, pending resolution of the Pacific Dawn v 
Bryson litigation where the rules used to allocate whiting QS and CHA 
are being challenged.)
    The C/P coop program is a limited access program that applies to 
vessels in the C/P sector of the Pacific whiting at-sea trawl fishery 
and is a single voluntary coop. Unlike the MS coop regulations, where 
multiple coops can be formed around the catch history assignments of 
each coop's member's endorsed permit, the single C/P coop receives the 
total Pacific whiting allocation for the catcher/processor sector. Only 
C/P endorsed limited entry permits can participate in this coop. 
Currently, the shorebased IFQ Program is composed of 138 QS permits/
accounts, 142 vessel accounts, and 50 first receivers. The mothership 
coop fishery is currently composed of a single coop, with six 
mothership processor permits, and 36 MS/CV endorsed permits, with one 
permit having two catch history assignments endorsed to it. The C/P 
coop is composed of 10 catcher-processor permits owned by three 
companies. There are four tribes that can participate in the tribal 
whiting fishery. The current tribal fleet is composed of 5 trawlers 
that either deliver to a shoreside plant or to a contracted mothership.
    Participants in the whiting fishery include fish harvesting 
companies, fish processing companies, companies involved in both 
harvesting and processing of seafood products such as catcher-
processors, organizations, and governmental jurisdictions.
    These regulations directly affect IFQ Quota share holders who 
determine which vessel accounts receive QP, holders of mothership 
catcher-vessel-endorsed permits who determine how many co-ops will 
participate in the fishery and how much fish each co-op is to receive, 
and the catcher-processor co-op which is made up of three companies 
that own the catcher-processor permits. As part of the permit 
application processes for the non-tribal

[[Page 14262]]

fisheries, based on a review of the SBA size criteria, applicants are 
asked if they considered themselves a ``small'' business, and they are 
asked to provide detailed ownership information. Although there are 
three non-tribal sectors, many companies participate in two or more of 
these sectors. All mothership catcher-vessel participants participate 
in the shorebased IFQ sector, while two of the three catcher-processor 
companies also participate in both the shorebased IFQ sector and in the 
MS sector. Many companies own several QS accounts. After accounting for 
cross participation, multiple QS account holders, and for affiliation 
through ownership, there are 100 non-tribal entities directly affected 
by these proposed regulations, 82 of which are considered to be 
``small'' businesses. These regulations also directly affect tribal 
whiting fisheries. Based on groundfish ex-vessel revenues and on tribal 
enrollments (the population size of each tribe), the four tribes and 
their fleets are considered ``small'' entities.
    This rule will allocate fish between tribal harvesters (harvest 
vessels are small entities, tribes are small jurisdictions) and non-
tribal harvesters (a mixture of small and large businesses). Tribal 
fisheries undertake a mixture of fishing activities that are similar to 
the activities that non-tribal fisheries undertake. Tribal harvests are 
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 reapportioning 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, last year, NMFS did such a reapportionment. On, October 4, 
2012, NMFS announced: ``The best available information on October 2, 
2012 indicates that at least 28,000 mt of the tribal allocation of 
48,556 mt for the 2012 tribal Pacific whiting fishery will not be used 
by December 31, 2012. Recent conversations with tribal fishery managers 
indicate that reapportioning 28,000 mt, leaving a tribal allocation of 
20,556 mt, will not limit tribal harvest opportunities for the 
remainder of year. Tribal harvests to date amount to less than 1,000 
mt. In addition, the Quileute Tribe has not entered the fishery to 
date. Even if the Quileute Tribe enters the fishery, the remaining 
tribal allocation following reapportionment will allow for their 
participation.'' This reapportioning process allows unharvested tribal 
allocations of whiting to be fished by the non-tribal fleets, 
benefitting both large and small entities. See ADDRESSES.
    NMFS believes this proposed rule would not adversely affect small 
entities. Nonetheless, NMFS has prepared this IRFA and is requesting 
comments on this conclusion.
    There are no reporting, recordkeeping or other compliance 
requirements in the proposed rule.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action.
    NMFS issued Biological Opinions under the ESA on August 10, 1990, 
November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, 
and December 15, 1999 pertaining to the effects of the Pacific Coast 
groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River 
spring/summer, Snake River fall, upper Columbia River spring, lower 
Columbia River, upper Willamette River, Sacramento River winter, 
Central Valley spring, California coastal), coho salmon (Central 
California coastal, southern Oregon/northern California coastal), chum 
salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake 
River, Ozette Lake), and steelhead (upper, middle and lower Columbia 
River, Snake River Basin, upper Willamette River, central California 
coast, California Central Valley, south/central California, northern 
California, southern California). These biological opinions have 
concluded that implementation of the FMP for the Pacific Coast 
groundfish fishery was not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.
    NMFS issued a Supplemental Biological Opinion on March 11, 2006 
concluding that neither the higher observed bycatch of Chinook in the 
2005 whiting fishery nor new data regarding salmon bycatch in the 
groundfish bottom trawl fishery required a reconsideration of its prior 
``no jeopardy'' conclusion. NMFS also reaffirmed its prior 
determination that implementation of the Groundfish PCGFMP is not 
likely to jeopardize the continued existence of any of the affected 
ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon 
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as 
threatened under the ESA. The 1999 biological opinion concluded that 
the bycatch of salmonids in the Pacific whiting fishery were almost 
entirely Chinook salmon, with little or no bycatch of coho, chum, 
sockeye, and steelhead.
    On December 7, 2012, NMFS completed a biological opinion concluding 
that the groundfish fishery is not likely to jeopardize non-salmonid 
marine species including listed eulachon, green sturgeon, humpback 
whales, Steller sea lions, and leatherback sea turtles. The opinion 
also concludes that the fishery is not likely to adversely modify 
critical habitat for green sturgeon and leatherback sea turtles. An 
analysis included in the same document as the opinion concludes that 
the fishery is not likely to adversely affect green sea turtles, olive 
ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific 
right whales, blue whales, fin whales, sperm whales, Southern Resident 
killer whales, Guadalupe fur seals, or the critical habitat for Steller 
sea lions.
    As Steller sea lions and humpback whales are also protected under 
the Marine Mammal Protection Act (MMPA), incidental take of these 
species from the groundfish fishery must be addressed under MMPA 
section 101(a)(5)(E). On February 27, 2012, NMFS published notice that 
the incidental taking of Steller sea lions in the West Coast groundfish 
fisheries is addressed in NMFS' December 29, 2010 Negligible Impact 
Determination (NID) and this fishery has been added to the list of 
fisheries authorized to take Steller sea lions (77 FR 11493). NMFS is 
currently developing MMPA authorization for the incidental take of 
humpback whales in the fishery.
    On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) 
issued a biological opinion concluding that the groundfish fishery will 
not jeopardize the continued existence of the short-tailed albatross. 
The FWS also concurred that the fishery is not likely to adversely 
affect the marbled murrelet, California least tern, southern sea otter, 
bull trout, nor bull trout critical habitat.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the FMP. Consistent with the Magnuson-Stevens 
Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific 
Council is a representative of an Indian tribe with federally 
recognized fishing rights from the area of the Council's jurisdiction. 
In addition, NMFS has coordinated specifically with the tribes 
interested in the whiting fishery regarding the issues addressed by 
this rule.

[[Page 14263]]

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: February 27, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

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

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.

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


Sec.  660.50  Pacific Coast treaty Indian fisheries.

* * * * *
    (f) * * *
    (4) Pacific whiting. The tribal allocation for 2013 will be 17.5 
percent of the U.S. TAC plus 16,000 mt.
* * * * *
[FR Doc. 2013-04922 Filed 3-4-13; 8:45 am]
BILLING CODE 3510-22-P