[Federal Register Volume 81, Number 47 (Thursday, March 10, 2016)]
[Proposed Rules]
[Pages 12676-12679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05254]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 160126053-6053-01]
RIN 0648-BF74


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; 2016 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 2016 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 allocate 17.5% of the U.S. Total 
Allowable Catch of Pacific whiting for 2016 to 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 11, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0009, 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-2016-0009, 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: Miako Ushio.
    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).

FOR FURTHER INFORMATION CONTACT: Miako Ushio (West Coast Region, NMFS), 
phone: 206-526-4644, 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 West 
Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html 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 
Pacific Coast Groundfish Fishery Management Plan (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 in consultation with the affected tribe(s) 
and, insofar as possible, with tribal consensus. The procedures NMFS 
employs in implementing tribal treaty rights under the FMP were 
designed to provide a framework process by which NMFS 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.
    Since the FMP has been in place, 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.
    There are four tribes that can participate in the tribal whiting 
fishery: the Hoh Tribe, the Makah Tribe, the Quileute Tribe, and the 
Quinault Indian Nation (collectively, the ``Treaty Tribes''). The Hoh 
Tribe has not expressed an interest in participating to date. The 
Quileute Tribe and Quinault Indian Nation have expressed interest in 
participating in the whiting fishery. However, to date, only the Makah 
Tribe has prosecuted a tribal fishery for

[[Page 12677]]

Pacific whiting. They have harvested whiting since 1996 using midwater 
trawl gear. Tribal allocations have been based on discussions with the 
Treaty Tribes regarding their intent for those fishing years. Table 1 
below provides a history of U.S. OYs and annual tribal allocation in 
metric tons (mt).

   Table 1--U.S. Optimum Yields (OYs) and Annual Tribal Allocation in
                            Metric Tons (mt)
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              Year                      U.S. OY        Tribal Allocation
------------------------------------------------------------------------
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
2013............................  269,745 mt TAC....  63,205 mt
2014............................  316,206 mt TAC....  55,336 mt
2015............................  325,072 mt TAC....  56,888 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 2009, NMFS, the states of Washington and Oregon, and the Treaty 
Tribes started a process to determine the long-term tribal allocation 
for Pacific whiting; however, no long-term allocation has been 
determined. In order to ensure Treaty Tribes continue to receive 
allocations, this rule proposes the 2016 tribal allocation of Pacific 
whiting. This is an interim allocation not intended to set precedent 
for future allocations.

Tribal Allocation for 2016

    In exchanges between NMFS and the Treaty Tribes during 2015, the 
Makah Tribe indicated their intent to participate in the tribal whiting 
fishery in 2016. The Makah Tribe has requested 17.5% of the U.S. TAC. 
The Quileute Tribe and the Quinault Indian Nation indicated that they 
are not planning to participate in 2016. NMFS proposes a tribal 
allocation that accommodates the Makah request, specifically 17.5% 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 17.5% is within the range of the tribal treaty 
right to Pacific whiting.
    The Joint Management Committee, which was established pursuant to 
the Agreement between the United States and Canada on Pacific Hake/
Whiting (the Agreement), is anticipated to recommend the coastwide and 
corresponding U.S./Canada TACs no later than March 25, 2016. The U.S. 
TAC is 73.88% of the coastwide TAC. Until this TAC is set, NMFS cannot 
propose a specific amount for the tribal allocation. The whiting 
fishery typically begins in May, and the final rule establishing the 
whiting specifications for 2016 is anticipated to be published by early 
May. Therefore, in order to provide for public input on the tribal 
allocation, NMFS is issuing this proposed rule without the final 2016 
TAC. However, to provide a basis for public input, NMFS is describing a 
range of potential tribal allocations in this proposed rule, applying 
the proposed approach to determining the tribal allocation to a range 
of potential TACs derived from historical experience.
    In order to project a range of potential tribal allocations for 
2016, NMFS is applying its proposed approach to determining the tribal 
allocation to the range of U.S. TACs over the last 10 years, 2006 
through 2015 (plus or minus 25% to capture variability in stock 
abundance). The range of TACs in that time period was 135,939 mt (2009) 
to 325,072 mt (2015). Applying the 25% variability results in a range 
of potential TACs of 101,954 mt to 406,340 mt for 2016. Therefore, 
using the proposed allocation rate of 17.5%, the potential range of the 
tribal allocation for 2016 would between 17,842 and 71,110 mt.
    This proposed 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 2016 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.
    As required by section 603 of the Regulatory Flexibility Act (RFA), 
an Initial Regulatory Flexibility Analysis (IRFA) was prepared. 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.
    Under the RFA, the term ``small entities'' includes small 
businesses, small organizations, and small governmental jurisdictions. 
The Small Business Administration (SBA) has established size criteria 
for entities involved in the fishing industry. 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 
$20.5 million for all its affiliated operations worldwide (See 79 FR 
33647; June 12, 2014). For marinas and charter/party boats, a small 
business now defined as one with annual receipts, not in excess of $7.5 
million. For purposes of rulemaking, NMFS is applying the $20.5 million 
standard to catcher processors (C/Ps) because Pacific whiting C/Ps are 
involved in the commercial harvest of finfish. 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. Effective February 26, 2016,

[[Page 12678]]

a seafood processor is a small business if it is independently owned 
and operated, not dominant in its field of operation, and employs 750 
or fewer persons on a full time, part time, temporary, or other basis, 
at all its affiliated operations worldwide (See NAICS 311710 at 81 FR 
4469; January 26, 2016).
    Small organizations. The RFA defines small organizations as any 
nonprofit enterprise that is independently owned and operated and is 
not dominant in its field.
    Small governmental jurisdictions. 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.
    This proposed rule would allocate 17.5% of the U.S. Total Allowable 
Catch of Pacific whiting for 2016 to Pacific Coast Indian tribes that 
have a Treaty right to harvest groundfish. This allocation percentage 
was used for the 2015 fishery. The entities that this rule directly 
impacts are the Makah Tribe and the following in the non-tribal 
fisheries: Quota share (QS) holders in the Shorebased Individual 
Fishing Quota (IFQ) Program--Trawl Fishery; vessels in the Mothership 
Coop (MS) Program--Whiting At-sea Trawl Fishery; and the C/P Coop 
Whiting At-sea Trawl Fishery. These entities determine how much of 
their allocations are to be actually fished and what vessels are 
allowed to fish their allocations. This rule proposes to allocate fish 
to the Makah Tribe. Based on groundfish ex-vessel revenues and on 
tribal enrollments (the population size of each tribe), the Makah Tribe 
is considered a small entity.
    Currently, the Shorebased IFQ Program is composed of 172 Quota 
Share permits/accounts, 152 vessel accounts, and 44 first receivers. 
The MS fishery is currently composed of a single coop, with six 
mothership processor permits, and 34 Mothership/Catcher-Vessel (MS/CV) 
endorsed permits, with three permits each having two catch history 
assignments. The C/P Program is composed of 10 C/P permits owned by 
three companies that have formed a single co-op. Many companies 
participate in two sectors and some participate in all three sectors. 
All of the 34 mothership catch history assignments are associated with 
a single mothership co-op and all ten of the catcher-processor permits 
are associated with a co-op. These co-ops are considered large entities 
from several perspectives; they have participants that are large 
entities, whiting co-op revenues exceed or have exceeded the $20.5 
million, or co-op members are connected to American Fishing Act permits 
or co-ops where the NMFS Alaska Region has determined they are all 
large entities (79 FR 54597; September 12, 2014). After accounting for 
cross participation, multiple QS account holders, and affiliation 
through ownership, NMFS estimates that there are 103 non-tribal 
entities directly affected by these proposed regulations, 89 of which 
are considered ``small'' businesses.
    For the years 2011 to 2015, the total whiting fishery (tribal and 
non-tribal) averaged harvests of approximately 205,000 mt annually, 
worth over $52 million in ex-vessel revenues. As the U.S. whiting TAC 
has been highly variable during this time, so have harvests. In the 
past five years, harvests have ranged from 160,000 mt (2012) to 264,000 
mt (2014). Ex-vessel revenues have also varied in the same period, with 
annual ex-vessel revenues ranging from $25 million (2015) to $65 
million (2013 and 2014). Total whiting harvest in 2015 was 
approximately 151,000 mt worth $25 million, at an ex-vessel price of 
$167 per mt. In 2014, harvest was 264,000 tons, and ex-vessel revenues 
were over $64 million with an average ex-vessel price of $240 per mt. 
The prices for whiting are largely determined by the world market for 
groundfish, because most of the whiting harvested is exported. Poor 
world market conditions led to a decrease in prices in 2015. There was 
no tribal catch of Pacific whiting in 2015, and overall, a lower 
percentage of the commercial TAC was harvested than in prior years.
    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. The latest available 
economic data indicates that in 2012, motherships received $30.3 
million in wholesale revenue, C/Ps received $51 million, and shoreside 
processors $55 million. 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. Pacific 
whiting TAC. Tribal fisheries undertake a mixture of fishing activities 
that are similar to the activities that non-tribal fisheries undertake. 
Tribal harvests have been delivered to both shoreside plants and at-sea 
processors. These processing facilities also process fish harvested by 
non-tribal fisheries.
    This proposed rule would allocate 17.5% of Pacific whiting to the 
tribal fishery, and would ultimately determine how much is left for 
allocation to the non-tribal sectors. The amount of whiting allocated 
to both the tribal and non-tribal 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 three 
non-tribal 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 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. Total whiting harvest in 2015 was 
approximately 151,000 mt worth $25 million, at an ex-vessel price of 
$167 per mt. Assuming a similar TAC and ex-vessel price in 2016, if the 
Treaty Tribes were to harvest 17.5%, the approximate value of that 
harvest would be $4.4 million. If the Treaty 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 2015, NMFS executed one such reapportionment. The best 
available information through September 14, 2015, indicated that at 
least 30,000 mt of the tribal allocation would not be harvested by 
December 31, 2015. To allow for full utilization the resource, NMFS 
reapportioned 30,000 mt on September 16, 2015, to the Shorebased IFQ 
Program, C/P Coop and MS Coop in proportion to each sector's original 
allocation. Reapportioning this amount was expected to allow for 
greater attainment of the TAC while not limiting tribal harvest 
opportunities for the remainder of the year. The revised Pacific 
whiting allocations for 2015 following the reapportionment were: Tribal 
26,888 mt; C/P Coop 100,873 mt; MS Coop 71,204 mt; and Shorebased IFQ 
Program 214,607 mt.
    NMFS considered two alternatives for this action: the ``No-Action'' 
and the ``Proposed Action.'' 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

[[Page 12679]]

fishery that will allow them to exercise their treaty right to fish for 
whiting. Under the Proposed Action alternative, NMFS proposes to set 
the tribal allocation percentage at 17.5%, as requested by the tribes. 
This would yield a tribal allocation of between 17,842 and 71,110 mt 
for 2016. Consideration of a percentage lower than the tribal request 
of 17.5% is not appropriate in this instance. As a matter of policy, 
NMFS has historically supported the harvest levels requested by the 
tribes. Based on the information available to NMFS, the tribal request 
is within their tribal treaty rights. A higher percentage would 
arguably also be within the scope of the treaty right. However, a 
higher percentage would unnecessarily limit the non-tribal fishery.
    Under the No-Action alternative, NMFS would not make an allocation 
to the tribal sector. This alternative was considered, but the 
regulatory framework provides for a tribal allocation on an annual 
basis only. Therefore, the no-action alternative would result in no 
allocation of Pacific whiting to the tribal sector in 2016, which would 
be inconsistent with NMFS' responsibility to manage the fishery 
consistent with the tribes' treaty rights. Given that there is a tribal 
request for allocation in 2016, this alternative received no further 
consideration.
    NMFS believes this proposed rule would not adversely affect small 
entities. The reapportioning process allows unharvested tribal 
allocations of whiting, fished by small entities, to be fished by the 
non-tribal fleets, benefitting both large and small entities. 
Nonetheless, NMFS has prepared an IRFA and is requesting comments on 
this conclusion. See ADDRESSES.
    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.
    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.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: March 3, 2016.
Samuel D. Rauch III,
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., and 
16 U.S.C. 7001 et seq.

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


Sec.  660.50  Pacific Coast treaty Indian fisheries.

* * * * *
    (f) * * *
    (4) Pacific whiting. The tribal allocation for 2016 will be 17.5% 
of the U.S. TAC.
* * * * *
[FR Doc. 2016-05254 Filed 3-9-16; 8:45 am]
 BILLING CODE 3510-22-P