[Federal Register Volume 82, Number 55 (Thursday, March 23, 2017)]
[Proposed Rules]
[Pages 14850-14853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05758]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 161128999-7248-01]
RIN 0648-BG47


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2017 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 2017 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, as amended. This proposed rule would allocate 17.5 percent of the 
U.S. Total Allowable Catch (TAC) of Pacific whiting for 2017 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 24, 2017.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2017-0005, by either 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-2017-0005, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Barry A. Thom, Regional Administrator, West Coast 
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, 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) address the implementation of 
the treaty rights that Pacific Coast treaty Indian tribes have to 
harvest groundfish in their usual and accustomed fishing areas in U.S. 
waters. Section 660.50(d) provides that an allocation or regulation 
specific to the tribes shall be initiated by a written request from a 
Pacific Coast treaty Indian tribe with treaty fishing rights in the 
area covered by the FMP at the beginning of the biennial harvest 
specifications and management measures process. The Secretary will 
develop tribal allocations and regulations in consultation with the 
affected tribe(s) and, insofar as possible, with tribal consensus. The 
procedures that 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 
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. 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 Pacific 
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 
commencing participation in the Pacific whiting fishery. However, to 
date, only the Makah Tribe has prosecuted a tribal fishery for Pacific 
whiting, having harvested Pacific whiting since 1996 using midwater 
trawl gear. Tribal allocations have been based on discussions with the 
Tribes regarding their intent for those fishing years. Table 1 below 
provides a history of U.S. TACs and annual tribal allocation in metric 
tons (mt).

 Table 1--U.S. Total Allowable Catch (TAC) and Annual Tribal Allocation
                           in Metric Tons (mt)
------------------------------------------------------------------------
                                                                Tribal
                     Year                         U.S. TAC    allocation
                                                  \1\ (mt)       (mt)
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2007..........................................      242,591       35,000
2008..........................................      269,545       35,000
2009..........................................      135,939       50,000
2010..........................................      193,935       49,939
2011..........................................      290,903       66,908
2012..........................................      186,037       48,556
2013..........................................      269,745       63,205
2014..........................................      316,206       55,336
2015..........................................      325,072       56,888

[[Page 14851]]

 
2016..........................................      367,553       64,322
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\1\ Beginning in 2012, the United States started using the term Total
  Allowable Catch, or TAC, based on the Agreement between the Government
  of the United States of America and the Government of Canada on
  Pacific Hake/Whiting. Prior to 2012, the terms Optimal Yield (OY) and
  Annual Catch Limit (ACL) were used.

    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 2017 tribal allocation of Pacific 
whiting. This interim allocation is not intended to set precedent for 
future allocations.

Tribal Allocation for 2017

    In exchanges between NMFS and the Treaty Tribes during January 
2017, the Makah Tribe indicated their intent to participate in the 
tribal Pacific whiting fishery in 2017, and requested 17.5 percent of 
the U.S. TAC. The Quileute Tribe and the Quinault Indian Nation 
indicated that they are not planning to participate in 2017. NMFS 
proposes a tribal allocation that accommodates the Makah request, 
specifically 17.5 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 the 17.5 percent 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 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, 2017. The U.S. TAC is 73.88 percent of the 
coastwide TAC. Until this TAC is set, NMFS cannot propose a specific 
amount for the tribal allocation. The Pacific whiting fishery typically 
begins in May, and the final rule establishing the Pacific whiting 
specifications for 2017 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 2017 
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 for determining the tribal allocation to a range 
of potential TACs derived from past harvest levels.
    In order to project a range of potential tribal allocations for 
2017, NMFS is applying its proposed approach for determining the tribal 
allocation to the range of U.S. TACs over the last 10 years, 2007 
through 2016 (plus or minus 25 percent to capture variability in stock 
abundance). The range of U.S. TACs in that time period was 135,939 mt 
(2009) to 367,553 mt (2016). Applying the 25 percent variability 
results in a range of potential TACs of 101,954 mt to 459,441 mt for 
2017. Therefore, using the proposed allocation rate of 17.5 percent, 
the potential range of the tribal allocation for 2017 would between 
17,842 and 80,402 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 Treaty Tribes to fish in their 
``usual and accustomed grounds and stations'' in common with non-tribal 
citizens. See United States v. Washington, 384 F. Supp. 313 (W.D. 
1974).

Classification

    NMFS has preliminarily determined that the management measures for 
the 2017 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. 
A small organization is any nonprofit enterprise that is independently 
owned and operated and is not dominant in its field. Small governmental 
jurisdictions such as governments of cities, counties, towns, 
townships, villages, school districts, or special districts are 
considered small jurisdictions if their populations are less than 
50,000 (5 U.S.C. 601). The Small Business Administration has 
established size criteria for entities involved in the fishing industry 
(13 CFR 121.201). A wholesale business primarily engaged in servicing 
the fishing industry is a small business if it employs 100 or fewer 
persons on a full time, part time, temporary, or other basis, at all 
its affiliated operations worldwide. A business primarily engaged in 
seafood processing is a small business if it is independently owned and 
operated, not dominant in its field of operation, and employs 750 or 
fewer persons on a full time, part time, temporary, or other basis, at 
all its affiliated operations worldwide. For purposes of this 
rulemaking, NMFS is applying the seafood processor standard to catcher 
processors (C/Ps) because like mothership (MS) processor vessels, 
Pacific whiting C/Ps earn the majority of the revenue from processed 
seafood product. For RFA purposes only, NMFS has established a small 
business size standard for businesses, including their affiliates, 
whose primary industry is commercial fishing (50 CFR 200.2, December 
29, 2015). A business primarily engaged in commercial fishing (NAICS 
code 11411) is classified by NMFS as a small business if it is 
independently owned and operated, is not dominant in its field of 
operation (including affiliates), and has combined annual receipts not 
in excess of $11 million for all its affiliated operations worldwide.
    This proposed rule would affect how Pacific whiting is allocated to 
the following sectors/programs: Tribal, Shorebased Individual Fishing 
Quota (IFQ) Program Trawl Fishery, MS Coop Program--Whiting At-sea 
Trawl Fishery, and C/P Coop Program--Whiting At-sea Trawl Fishery. The 
amount of Pacific whiting allocated to these sectors is based on the 
U.S. TAC.
    Currently, the Shorebased IFQ Program is composed of 172 Quota 
Share permits/accounts, 152 vessel accounts, and 44 first receivers, 
only a portion of which participate in the Pacific whiting fishery, 
listed below. These regulations also directly affect participants in 
the MS Coop Program, a general term to describe the limited

[[Page 14852]]

access program that applies to eligible harvesters and processors in 
the MS sector of the Pacific whiting at-sea trawl fishery. The MS Coop 
program currently consists of six MS processor permits, and a catcher 
vessel fleet currently composed of a single coop, with 34 Mothership/
Catcher Vessel (MS/CV) endorsed permits (with three permits each having 
two catch history assignments). These regulations also directly affect 
the C/P Coop Program, composed of 10 C/P endorsed permits owned by 
three companies that have formed a single coop. These co-ops are 
considered large entities from several perspectives; they have 
participants that are large entities, have in total more than 750 
employees worldwide including affiliates. Although there are three non-
tribal sectors, many companies participate in two sectors and some 
participate in all three sectors. As part of the permit application 
processes for the non-tribal fisheries, based on the NMFS and Small 
Business Administration size criteria described above, permit 
applicants were asked if they considered themselves a small business, 
and they are asked to provide detailed ownership information. 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. We also expect one tribal entity 
to fish in 2017. Tribes are not considered small entities for the 
purposes of RFA. Impacts to tribes are nevertheless considered in this 
analysis.
    This rule will allocate fish between tribal and non-tribal 
harvesters (a mixture of small and large businesses). Tribal fisheries 
consist of a mixture of fishing activities that are similar to the 
activities that non-tribal fisheries undertake. Tribal harvests may be 
delivered to both shoreside plants and motherships for processing. 
These processing facilities also process fish harvested by non-tribal 
fisheries. The effect of the tribal allocation on non-tribal fisheries 
will depend on the level of tribal harvests relative to their 
allocation and the reapportionment process. If the tribes do not 
harvest their entire allocation, there are opportunities during the 
year to reapportion unharvested tribal amounts to the non-tribal 
fleets. For example, in 2016 NMFS reapportioned 34,000 mt of the 
original 64,322 mt tribal allocation. This reapportionment was based on 
conversations with the tribes and the best information available at the 
time, which indicated that this amount would not limit tribal harvest 
opportunities for the remainder of the year. In 2016, the tribal 
Pacific whiting catch was approximately 2,500 mt in a fishery that 
spanned late August to mid-October. This reapportioning process allows 
unharvested tribal allocations of Pacific whiting to be fished by the 
non-tribal fleets, benefitting both large and small entities. Following 
are the revised Pacific whiting allocations for 2016 after the 
reapportionment: The Tribal allocation was 30,322 mt; the C/P Coop 
allocation was 114,149 mt; the MS Coop allocation was 80,575 mt; and 
the Shorebased IFQ Program allocation was 141,007 mt.
    For the years 2011 to 2016, the total Pacific whiting fishery 
(tribal and non-tribal) averaged harvests of approximately 292,000 mt 
annually. As the U.S. Pacific whiting TAC has been highly variable 
during this time, so have harvests and ex-vessel revenues. The prices 
for Pacific whiting are largely determined by the world market because 
most of the Pacific whiting harvested in the U.S. is exported.
    In the last year for which detailed economic information is 
available, the MS fleet had $46.4 million in wholesale revenue, 
generated $42 million in income and supported 926 jobs on the west 
coast from Pacific whiting (2014 Economic Data Collection (EDC) 
Mothership Report). The C/P fleet, which had $99.2 million in wholesale 
revenue in 2014, generated $142 million in income and supported 1,895 
jobs on the west coast from Pacific whiting (2014 Economic Data 
Collection (EDC) C/P Report). In 2014, eight shoreside Pacific whiting 
companies processed 61,000 mt of Pacific whiting, for a wholesale 
revenue of $71 million.
    Impacts to Makah catcher vessels who elect to participate in the 
tribal fishery are measured with an estimate of ex-vessel revenue. In 
lieu of more complete information on tribal deliveries, total ex-vessel 
revenue is estimated with the 2016 average IFQ ex-vessel price of 
Pacific whiting, which was $165 per mt. At that price, the proposed 
2017 Tribal allocation (potentially 17,842-80,402 mt) would have an ex-
vessel value between $2.9 million and $13.2 million.
    NMFS considered two alternatives for this action: The ``No-Action'' 
alternative and the ``Proposed Action'' alternative. 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 Pacific 
whiting. Under the Proposed Action alternative, NMFS proposes to set 
the tribal allocation percentage at 17.5 percent, as requested by the 
tribes. This would yield a tribal allocation of between 17,842 and 
80,402 mt for 2017. Consideration of a percentage lower than the tribal 
request of 17.5 percent is not appropriate in this instance. As a 
matter of policy, NMFS has historically supported the harvest levels 
requested by the tribes. Based on the information available to NMFS, 
the tribal request is within their tribal treaty rights. A higher 
percentage would arguably also be within the scope of the treaty 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 2017, 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 2017, 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 Pacific whiting to be fished by the non-tribal fleets, 
benefitting both large and small entities. 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 Pacific whiting fishery regarding the issues 
addressed by this rule.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.


[[Page 14853]]


    Dated: March 17, 2017.
Alan D. Risenhoover,
Acting 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 2017 will be 17.5 
percent of the U.S. TAC.
* * * * *
[FR Doc. 2017-05758 Filed 3-22-17; 8:45 am]
 BILLING CODE 3510-22-P