[Federal Register Volume 84, Number 51 (Friday, March 15, 2019)]
[Proposed Rules]
[Pages 9471-9475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04785]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 181218999-9208-01]
RIN 0648-BI67


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2019 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 2019 Pacific whiting 
fishery under the authority of the Pacific Coast Groundfish Fishery 
Management Plan, the Magnuson-Stevens Fishery Conservation and 
Management Act, and the Pacific Whiting Act of 2006. This proposed rule 
would allocate 17.5 percent of the U.S. Total Allowable Catch of 
Pacific whiting for 2019 to Pacific Coast Indian tribes that have a 
treaty right to harvest groundfish. It

[[Page 9472]]

would also amend the provisions regarding reapportionment of the treaty 
tribes' whiting allocation to the non-treaty sectors to require that 
NMFS consider the level of Chinook salmon bycatch when determining 
whether to reapportion whiting. This rule is necessary to manage the 
Pacific whiting stock to Optimal Yield, ensure that the Pacific Coast 
Groundfish Fishery Management Plan (FMP) is implemented in a manner 
consistent with treaty rights of four treaty tribes to fish for Pacific 
whiting in their ``usual and accustomed grounds and stations'' in 
common with non-tribal citizens, and to protect salmon stocks listed 
under the Endangered Species Act.

DATES: Comments on this proposed rule must be received no later than 
April 1, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0001 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-2019-0001 click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Aja Szumylo, Sustainable Fisheries Division, West 
Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070.
    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 website at https://www.federalregister.gov. 
Background information and documents are available at the NMFS West 
Coast Region website at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific 
Fishery Management Council's website at http://www.pcouncil.org/.

Background: Tribal Allocations

    The regulations at 50 CFR 660.50(d) outline the procedures for 
implementing the treaty rights that Pacific Coast treaty Indian tribes 
have to harvest groundfish in their usual and accustomed fishing areas 
in U.S. waters. Tribes with treaty fishing rights in the area covered 
by the Pacific Coast Groundfish FMP request allocations, set-asides, or 
regulations specific to the tribes during the Pacific Fishery 
Management Council's (Council) 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.
    Since the FMP has been in place, NMFS has allocated a portion of 
the U.S. Total Allowable Catch (TAC)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''). 
Tribal allocations have been based on discussions with the Tribes 
regarding their intent for those fishing years. The Hoh Tribe has not 
expressed an interest in participating 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 history of U.S. TACs and annual 
tribal allocation in metric tons (mt).

   Table 1--U.S. Total Allowable Catch and Annual Tribal Allocation in
                            Metric Tons (mt)
------------------------------------------------------------------------
                                                              Tribal
                  Year                     U.S. TAC \1\     allocation
                                               (mt)            (mt)
------------------------------------------------------------------------
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
2016....................................         367,553          64,322
2017....................................         441,433          77,251
2018....................................         441,433          77,251
------------------------------------------------------------------------
\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, these groups have not yet determined a 
long-term allocation. In order to ensure Treaty Tribes continue to 
receive allocations, this rule proposes the 2019 tribal allocation of 
Pacific whiting. This is an interim allocation not intended to set 
precedent for future allocations.

Tribal Allocation for 2019

    In exchanges between NMFS and the Treaty Tribes during September 
2018, the Makah Tribe indicated their intent to participate in the 
tribal Pacific whiting fishery in 2019 and requested 17.5 percent of 
the U.S. TAC. The Quinault Indian Nation and Quileute Indian Tribe both 
informed NMFS in December 2018 that they will not participate in the 
2019 fishery. The Hoh Indian Tribe has in previous years indicated in 
conversations with NMFS that they have no plans to fish for whiting in 
the foreseeable future and will contact NMFS if that changes. NMFS will 
contact the Tribes during the proposed rule comment period to refine 
the 2019 allocation before allocating the final U.S. TAC between the 
tribal and non-tribal whiting fisheries. NMFS proposes a tribal 
allocation that accommodates the Makah Tribe's 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 Joint Management Committee, which was established pursuant to 
the Agreement between the United States and Canada on Pacific Hake/
Whiting

[[Page 9473]]

(the Agreement), is anticipated to recommend the coastwide and 
corresponding U.S./Canada TACs no later than March 25, 2019. 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 on May 15, and we expect to publish 
the final rule to set Pacific whiting specifications for 2019 by early 
May. Therefore, to allow for public input on the tribal allocation, 
NMFS is issuing this proposed rule without the final 2019 TAC.
    To provide a basis for public input, NMFS is describing a range of 
potential tribal allocations in this proposed rule. We applied the 
proposed tribal allocation of 17.5 percent to the range of U.S. TACs 
over the last 10 years, 2009 through 2018 (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 441,433 mt (2017 and 2018). 
Applying the 25 percent variability results in a range of potential 
TACs of 101,954 mt to 551,791 mt for 2019. Using the proposed tribal 
allocation of 17.5 percent, the potential range of the tribal 
allocations for 2019 would between 17,842 mt and 96,563 mt.

Consideration of Chinook Salmon Bycatch Before Reapportioning Tribal 
Whiting

    Chinook salmon, including some listed as threatened under the 
Endangered Species Act (ESA), are caught as bycatch in the Pacific 
whiting fishery. The potential effects of this has been considered 
numerous times in NMFS' ESA section 7(a)(2) biological opinions. Most 
recently, on December 11, 2017, NMFS completed an ESA section 7(a)(2) 
biological opinion on the effects of the Pacific Coast Groundfish FMP 
(which manages 90+ species, including Pacific whiting) on salmonids. 
Term and Condition 2c of the biological opinion states: No later than 
May 15th, 2019, NMFS will amend the provisions regarding 
reapportionment of the treaty tribes' whiting allocation to the non-
treaty sectors to require that NMFS consider the level of Chinook 
bycatch when determining whether to reapportion whiting. This proposed 
rule would amend the Pacific Coast Groundfish fishery regulations to 
require this consideration. The purpose of this action is twofold. 
First, the regulatory changes would minimize impacts to Chinook salmon 
from the whiting fishery. Reapportioning whiting that would not 
otherwise be used allows the non-tribal whiting fishery to continue 
fishing, thereby potentially impacting Chinook salmon, which occurs as 
bycatch in that fishery. The second purpose is to protect the treaty 
rights of the tribes, by preventing a reapportionment of Pacific 
whiting that could cause the entire whiting fishery to close via 
automatic action measures outlined at Sec.  660.60(d)(v), thereby 
limiting the tribal whiting fishery's opportunity to harvest their 
allocation.
    Many factors could potentially be considered when determining a 
reapportionment's effect on listed Chinook salmon, including the status 
of Chinook salmon stocks caught in the whiting fishery, and location of 
the bycatch. However, the inseason data available about these factors 
is limited. In this action, NMFS proposes to require consideration of 
Chinook salmon bycatch rates and numbers prior to reapportioning tribal 
whiting. This consideration is required by NMFS' ESA and tribal 
obligations. NMFS requests comments on this approach.
    This proposed rule would be implemented under authority of section 
305(d) of the Magnuson-Stevens 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. United States v. Washington, 384 F. 
Supp. 313 (W.D. 1974).
    NMFS notes that the public comment period for this proposed rule is 
15 days. As a result of delays in this rulemaking related to the recent 
lapse in appropriations and the requirements to amend reallocation 
provisions and announce Pacific whiting harvest guidelines by the 
Pacific whiting season start date, May 15th, NMFS has determined that a 
15-day comment period best balances the interest in allowing the public 
adequate time to comment on the proposed measures while implementing 
the management measures and announcing the Pacific whiting allocations 
by May 15th.

Classification

    NMFS has preliminarily determined that the management measures for 
the 2019 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 has established size criteria for 
entities involved in the fishing industry that qualify as small 
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, not in excess of $11 million for all its affiliated 
operations worldwide (see 80 FR 81194, December 29, 2015). 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. 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. For purposes of rulemaking, 
NMFS is also applying the seafood processor standard to catcher 
processors because Pacific whiting Catcher-Processors (C/Ps) earn the 
majority of the revenue from processed seafood product.
    This proposed rule would affect how Pacific whiting is allocated to 
the following sectors/programs: Tribal, Shorebased Individual Fishing 
Quota (IFQ) Program Trawl Fishery, Mothership (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.
    We expect one tribal entity to fish in 2019. Tribes are not 
considered small entities for the purposes of RFA. Impacts to tribes 
are nevertheless considered in this analysis. As of January 2019, the 
Shorebased IFQ Program is composed of 174 Quota Share permits/accounts 
(136 of which were allocated whiting quota pounds), 128 vessel accounts 
(57 of which have received an initial transfer of whiting quota pounds) 
and 42 first receivers, three of which are designated as whiting-only 
receivers and 11 that may receive both whiting and non-whiting.

[[Page 9474]]

These regulations also directly affect participants in the MS Coop 
Program, a general term to describe the limited access program that 
applies to eligible harvesters and processors in the MS sector of the 
Pacific whiting at-sea trawl fishery. This 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, and 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 a review of the Small Business Administration size 
criteria, permit applicants are asked if they considered themselves a 
``small'' business, and they are asked to provide detailed ownership 
information. Data on employment worldwide, including affiliates, are 
not available for these companies, which generally operate in Alaska as 
well as the West Coast and may have operations in other countries as 
well. NMFS has limited entry permit holders self-report size status. 
For 2019, all ten CP permits reported they are not small businesses, as 
did nine mothership catcher vessels and one shorebased catcher vessel. 
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.
    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 2018 NMFS reapportioned 40,000 mt of the 
original 77,251 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. The reapportioning process 
allows unharvested tribal allocations of Pacific whiting to be fished 
by the non-tribal fleets, benefitting both large and small entities. 
The revised Pacific whiting allocations for 2018 following the 
reapportionment were: Tribal 37,251 mt, C/P Coop 136,912 mt; MS Coop 
96,644 mt; and Shorebased IFQ Program 169,127 mt.
    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. The U.S. Pacific whiting TAC is highly variable, as have 
subsequent harvests and ex-vessel revenues. For the years 2014 to 2018, 
the total Pacific whiting fishery (tribal and non-tribal) averaged 
harvests of approximately 267,400 mt annually. The 2018 U.S. non-tribal 
fishery had a catch of almost 318,000 mt, and the tribal fishery landed 
approximately 6,000 mt.
    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 2018 average shoreside ex-vessel price of 
Pacific whiting, which was $165 per mt. At that price, the proposed 
2019 tribal allocation (potentially 17,842-96,563 mt) would have an ex-
vessel value between $2.9 million and $15.9 million.
    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 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 96,563 mt for 2019. 
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 2019, 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 2019, this alternative received no further 
consideration.
    While the reapportionment consideration of Chinook bycatch may 
negatively impact both large and small entities in the event of a high 
bycatch year, there are no alternatives identified that would be 
consistent with the applicable ESA statute that would also minimize any 
significant economic impact of the proposed rule on small entities.
    NMFS believes this proposed rule would not adversely affect small 
entities. The reapportioning process allows unharvested tribal 
allocations of Pacific whiting, fished by small entities, 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 
Fishery Management 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 9475]]


    Dated: March 11, 2019.
Chris Oliver,
Assistant Administrator for Fisheries, 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 2019 will be 17.5 
percent of the U.S. TAC.
* * * * *
0
3. Amend Sec.  660.131 by revising paragraph (h)(4) and adding (h)(5) 
to read as follows:


Sec.  660.131  Pacific whiting fishery management measures.

* * * * *
    (h) * * *
    (4) Estimates of the portion of the tribal allocation that will not 
be used by the end of the fishing year will be based on the best 
information available to the Regional Administrator.
    (i) Salmon bycatch. This fishery may be closed through automatic 
action at Sec.  660.60(d)(1)(v) and (vi).
    (ii) [Reserved]
    (5) Prior to reapportionment, NMFS will consider Chinook salmon 
take numbers and bycatch rates in each sector of the Pacific whiting 
fishery, in order to prevent a reapportionment that would limit Pacific 
Coast treaty Indian Tribes' access to the tribal allocation by 
triggering inseason closure of the Pacific whiting fishery as described 
at Sec.  660.60(d)(1)(v).

[FR Doc. 2019-04785 Filed 3-14-19; 8:45 am]
BILLING CODE 3510-22-P