Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2018 Tribal Fishery for Pacific Whiting, 3291-3294 [2018-01182]

Download as PDF Federal Register / Vol. 83, No. 16 / Wednesday, January 24, 2018 / Proposed Rules (j) Alternative Methods of Compliance (AMOCs) (1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ECO Branch, send it to the attention of the person identified in paragraph (k). You may email your request to: ANE-AD-AMOC@faa.gov. (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. SUMMARY: (k) Related Information (1) For more information about this AD, contact Robert Green, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781–238– 7754; fax: 781–238–7199; email: robert.green@faa.gov. (2) Refer to MCAI European Aviation Safety Agency AD 2017–0151, dated August 18, 2017, for more information. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating it in Docket No. FAA–2017–0967. (3) For service information identified in this AD, contact GE Aviation Czech s.r.o., ˇ ´ Beranovych 65, 199 02 Praha 9—Letnany, Czech Republic; phone: +420 222 538 111; fax: +420 222 538 222. You may view this referenced service information at the FAA, Engine & Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7759. ADDRESSES: Issued in Burlington, Massachusetts, on January 17, 2018. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service. [FR Doc. 2018–01124 Filed 1–23–18; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 171023999–8015–01] daltland on DSKBBV9HB2PROD with PROPOSALS RIN 0648–BH31 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2018 Tribal Fishery for Pacific Whiting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: VerDate Sep<11>2014 20:23 Jan 23, 2018 Jkt 244001 NMFS issues this proposed rule for the 2018 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 percent of the U.S. Total Allowable Catch (TAC) of Pacific whiting for 2018 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish. Comments on this proposed rule must be received no later than February 23, 2018. DATES: You may submit comments on this document, identified by NOAA– NMFS–2017–0160, 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-20170160, 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: Frank Lockhart. 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). Additional background information and documents are available at the NMFS West Coast Region website at https://www.westcoast. fisheries.noaa.gov/fisheries/ management/whiting/pacific_ whiting.html and at the Pacific Fishery Management Council’s website at https:// www.pcouncil.org/. Comments from the public may be viewed on Regulations.gov. FOR FURTHER INFORMATION CONTACT: Background 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. Section 660.50(d) establishes the process by which the tribes with treaty fishing rights in the area covered by the FMP request allocations, set-asides, 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 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. They have 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). Frank Lockhart, phone: 206–526–6142, and email: Frank.Lockhart@noaa.gov. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 3291 E:\FR\FM\24JAP1.SGM 24JAP1 3292 Federal Register / Vol. 83, No. 16 / Wednesday, January 24, 2018 / Proposed Rules daltland on DSKBBV9HB2PROD with PROPOSALS that the 17.5 percent is within the range TABLE 1—U.S. TOTAL ALLOWABLE CATCH AND ANNUAL TRIBAL ALLO- of the tribal treaty right to Pacific whiting. CATION IN METRIC TONS (MT) The Joint Management Committee, which was established pursuant to the Tribal Year U.S. TAC 1 Agreement between the United States allocation and Canada on Pacific Hake/Whiting 2007 ............. 242,591 mt ... 35,000 mt. (the Agreement), is anticipated to 2008 ............. 269,545 mt ... 35,000 mt. recommend the coastwide and 2009 ............. 135,939 mt ... 50,000 mt. corresponding U.S./Canada TACs no 2010 ............. 193,935 mt ... 49,939 mt. later than March 25, 2018. The U.S. 2011 ............. 290,903 mt ... 66,908 mt. TAC is 73.88 percent of the coastwide 2012 ............. 186,037 mt ... 48,556 mt. TAC. Until this TAC is set, NMFS 2013 ............. 269,745 mt ... 63,205 mt. cannot propose a specific amount for 2014 ............. 316,206 mt ... 55,336 mt. the tribal allocation. The Pacific whiting 2015 ............. 325,072 mt ... 56,888 mt. fishery typically begins in May, and the 2016 ............. 367,553 mt ... 64,322 mt. 2017 ............. 441,433 mt ... 77,251 mt. final rule establishing the Pacific whiting specifications for 2018 is 1 Beginning in 2012, the United States started using the term Total Allowable Catch, or anticipated to be published by early TAC, based on the Agreement between the May. Therefore, in order to provide for Government of the United States of America public input on the tribal allocation, and the Government of Canada on Pacific NMFS is issuing this proposed rule Hake/Whiting. Prior to 2012, the terms Optimal Yield (OY) and Annual Catch Limit (ACL) were without the final 2018 TAC. However, to provide a basis for public input, used. NMFS is describing a range of potential In 2009, NMFS, the states of tribal allocations in this proposed rule, Washington and Oregon, and the Treaty applying the proposed approach to Tribes started a process to determine the determining the tribal allocation to a long-term tribal allocation for Pacific range of potential TACs derived from whiting; however, no long-term past harvest levels. allocation has been determined. In order In order to project a range of potential to ensure Treaty Tribes continue to tribal allocations for 2018, NMFS is receive allocations, this rule proposes applying its proposed approach to the 2018 tribal allocation of Pacific determining the tribal allocation to the whiting. This allocation is not intended range of U.S. TACs over the last 10 to set precedent for allocations in future years, 2008 through 2017 (plus or minus years. 25 percent to capture variability in stock abundance). The range of U.S. TACs in Tribal Allocation for 2018 that time period was 135,939 mt (2009) In exchanges between NMFS and the to 441,433 mt (2017). Applying the 25 Treaty Tribes during 2017, the Makah percent variability results in a range of Tribe indicated their intent to potential TACs of 101,954 mt to 551,791 participate in the tribal Pacific whiting mt for 2018. Therefore, using the fishery in 2018, and requested 17.5 proposed allocation rate of 17.5 percent, percent of the U.S. TAC. The Quinault the potential range of the tribal Indian Nation informed the Region that allocation for 2018 would between they will not participate in the 2018 17,842 and 96,563 mt. fishery. Quileute Indian Tribe has not This proposed rule would be responded to inquiries about their implemented under authority of section whiting fishing intent for 2018, and has 305(d) of the Magnuson-Stevens Act, not pursued a whiting fishery to date. which gives the Secretary responsibility The Hoh Indian Tribe has in previous to ‘‘carry out any fishery management years indicated in conversation with plan or amendment approved or Frank Lockhart, Groundfish & Coastal prepared by him, in accordance with the Pelagic Species Senior Policy Advisor at provisions of this Act.’’ With this NMFS, that they have no plans to fish proposed rule, NMFS, acting on behalf for whiting in the foreseeable future and of the Secretary, would ensure that the will contact NMFS if that changes. FMP is implemented in a manner NMFS will again contact the tribes consistent with treaty rights of four during the proposed rule comment Treaty Tribes to fish in their ‘‘usual and period to refine, if necessary, the 2017 accustomed grounds and stations’’ in allocation before a final decision is common with non-tribal citizens. made. NMFS proposes a tribal United States v. Washington, 384 F. allocation that accommodates the Supp. 313 (W.D. 1974). Makah request, specifically 17.5 percent of the U.S. TAC. NMFS believes that the Classification current scientific information regarding NMFS has preliminarily determined the distribution and abundance of the that the management measures for the coastal Pacific whiting stock suggests 2018 Pacific whiting tribal fishery are VerDate Sep<11>2014 20:23 Jan 23, 2018 Jkt 244001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 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. This proposed rule is not expected to be an Executive Order 13771 regulatory action because this proposed rule is not significant under 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. 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, E:\FR\FM\24JAP1.SGM 24JAP1 daltland on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 83, No. 16 / Wednesday, January 24, 2018 / Proposed Rules 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. Currently, the Shorebased IFQ Program is composed of 180 Quota Share permits/accounts, 154 vessel accounts, and 47 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 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 nontribal 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. 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 2018. Tribes are not considered small entities for the purposes of RFA. 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 are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. The VerDate Sep<11>2014 20:23 Jan 23, 2018 Jkt 244001 effect of the tribal allocation on nontribal 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 nontribal fleets. For example, in 2017 NMFS reapportioned 41,000 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. In 2017, the tribal Pacific whiting catch was approximately 6,000 mt in a fishery that spanned early August to December and delivered to a shoreside processing plant. This reapportioning process allows unharvested tribal allocations of Pacific whiting to be fished by the nontribal fleets, benefitting both large and small entities. The revised Pacific whiting allocations for 2017 following the reapportionment were: Tribal 36,251 mt, C/P Coop 137,252 mt; MS Coop 96,884 mt; and Shorebased IFQ Program 169,547 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 2011 to 2016, the total Pacific whiting fishery (tribal and non-tribal) averaged harvests of approximately 292,000 mt annually. As of October 23, 2017, the U.S. fishery had an unprecedentedly high catch of almost 320,000 mt from the all-time high TAC of 441,433 mt. In 2015, the MS whiting fleet had $6.8 million in revenue, generated $19.1 million in income, and supported 461 jobs on the West Coast. The C/P fleet generated $7.1 million in revenue, driving $88.8 million in income and supporting 1,670 jobs. However, in 2015, bycatch constraints, anomalous ocean conditions, and a Russian import ban contributed to atypically low harvests and revenues and a historic low attainment of a high TAC. With similarly high (and increasing) TACs, attainment remained at average levels in 2014, 2016, and 2017. Thus, economic results from the 2015 season, the last year for which detailed economic data are available, are not a reasonable forecast of the 2018 season. Until 2016 economic data are available, this makes the 2014 season the last representative year for which detailed economic information is available. In 2014, the MS fleet had PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 3293 $46.4 million in wholesale revenue, and 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. The number of companies processing shoreside did not change in 2015. Impacts to Makah catcher vessels who elect to participate in the tribal fishery are measured with an estimate of exvessel revenue. In lieu of more complete information on tribal deliveries, total exvessel revenue is estimated with the 2016 average IFQ ex-vessel price of Pacific whiting, which was $165 per mt. At that price, the proposed 2018 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 because the tribal allocation is based primarily on the requests of the tribes, and these requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for Pacific whiting. 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 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 2018. 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 2018, which would be inconsistent with NMFS’ responsibility to manage the E:\FR\FM\24JAP1.SGM 24JAP1 3294 Federal Register / Vol. 83, No. 16 / Wednesday, January 24, 2018 / Proposed Rules daltland on DSKBBV9HB2PROD with PROPOSALS fishery consistent with the tribes’ treaty rights. Given that there is a tribal request for allocation in 2018, 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, 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 VerDate Sep<11>2014 20:23 Jan 23, 2018 Jkt 244001 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. Dated: January 18, 2018. 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: PO 00000 Frm 00012 Fmt 4702 Sfmt 9990 PART 660—FISHERIES OFF WEST COAST STATES 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. 2. In § 660.50, revise paragraph (f)(4) to read as follows: ■ § 660.50 Pacific Coast treaty Indian fisheries. * * * * * (f) * * * (4) Pacific whiting. The tribal allocation for 2018 will be 17.5 percent of the U.S. TAC. * * * * * [FR Doc. 2018–01182 Filed 1–23–18; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\24JAP1.SGM 24JAP1

Agencies

[Federal Register Volume 83, Number 16 (Wednesday, January 24, 2018)]
[Proposed Rules]
[Pages 3291-3294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01182]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 171023999-8015-01]
RIN 0648-BH31


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2018 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 2018 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 percent of the U.S. Total 
Allowable Catch (TAC) of Pacific whiting for 2018 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 
February 23, 2018.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2017-0160, 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-2017-0160, 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: 
Frank Lockhart.
    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).
    Additional background information and documents are available at 
the NMFS West Coast Region website at https://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's 
website at https://www.pcouncil.org/. Comments from the public may be 
viewed on Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Frank Lockhart, phone: 206-526-6142, 
and email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    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. Section 660.50(d) establishes the process by which the 
tribes with treaty fishing rights in the area covered by the FMP 
request allocations, set-asides, 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 
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. They have 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).

[[Page 3292]]



   Table 1--U.S. Total Allowable Catch and Annual Tribal Allocation in
                            Metric Tons (mt)
------------------------------------------------------------------------
              Year                   U.S. TAC \1\      Tribal allocation
------------------------------------------------------------------------
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........  48,556 mt.
2013............................  269,745 mt........  63,205 mt.
2014............................  316,206 mt........  55,336 mt.
2015............................  325,072 mt........  56,888 mt.
2016............................  367,553 mt........  64,322 mt.
2017............................  441,433 mt........  77,251 mt.
------------------------------------------------------------------------
\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 2018 tribal allocation of Pacific 
whiting. This allocation is not intended to set precedent for 
allocations in future years.

Tribal Allocation for 2018

    In exchanges between NMFS and the Treaty Tribes during 2017, the 
Makah Tribe indicated their intent to participate in the tribal Pacific 
whiting fishery in 2018, and requested 17.5 percent of the U.S. TAC. 
The Quinault Indian Nation informed the Region that they will not 
participate in the 2018 fishery. Quileute Indian Tribe has not 
responded to inquiries about their whiting fishing intent for 2018, and 
has not pursued a whiting fishery to date. The Hoh Indian Tribe has in 
previous years indicated in conversation with Frank Lockhart, 
Groundfish & Coastal Pelagic Species Senior Policy Advisor at NMFS, 
that they have no plans to fish for whiting in the foreseeable future 
and will contact NMFS if that changes. NMFS will again contact the 
tribes during the proposed rule comment period to refine, if necessary, 
the 2017 allocation before a final decision is made. 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 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, 2018. 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 2018 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 2018 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 past 
harvest levels.
    In order to project a range of potential tribal allocations for 
2018, NMFS is applying its proposed approach to determining the tribal 
allocation to the range of U.S. TACs over the last 10 years, 2008 
through 2017 (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). Applying the 25 percent variability 
results in a range of potential TACs of 101,954 mt to 551,791 mt for 
2018. Therefore, using the proposed allocation rate of 17.5 percent, 
the potential range of the tribal allocation for 2018 would between 
17,842 and 96,563 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. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).

Classification

    NMFS has preliminarily determined that the management measures for 
the 2018 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. 
This proposed rule is not expected to be an Executive Order 13771 
regulatory action because this proposed rule is not significant under 
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. 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,

[[Page 3293]]

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.
    Currently, the Shorebased IFQ Program is composed of 180 Quota 
Share permits/accounts, 154 vessel accounts, and 47 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 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. 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 2018. Tribes are not considered 
small entities for the purposes of RFA.
    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 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 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 2017 NMFS reapportioned 41,000 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. In 2017, the tribal 
Pacific whiting catch was approximately 6,000 mt in a fishery that 
spanned early August to December and delivered to a shoreside 
processing plant. This 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 2017 following the reapportionment were: Tribal 36,251 
mt, C/P Coop 137,252 mt; MS Coop 96,884 mt; and Shorebased IFQ Program 
169,547 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 2011 to 2016, 
the total Pacific whiting fishery (tribal and non-tribal) averaged 
harvests of approximately 292,000 mt annually. As of October 23, 2017, 
the U.S. fishery had an unprecedentedly high catch of almost 320,000 mt 
from the all-time high TAC of 441,433 mt.
    In 2015, the MS whiting fleet had $6.8 million in revenue, 
generated $19.1 million in income, and supported 461 jobs on the West 
Coast. The C/P fleet generated $7.1 million in revenue, driving $88.8 
million in income and supporting 1,670 jobs. However, in 2015, bycatch 
constraints, anomalous ocean conditions, and a Russian import ban 
contributed to atypically low harvests and revenues and a historic low 
attainment of a high TAC. With similarly high (and increasing) TACs, 
attainment remained at average levels in 2014, 2016, and 2017. Thus, 
economic results from the 2015 season, the last year for which detailed 
economic data are available, are not a reasonable forecast of the 2018 
season.
    Until 2016 economic data are available, this makes the 2014 season 
the last representative year for which detailed economic information is 
available. In 2014, the MS fleet had $46.4 million in wholesale 
revenue, and 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. The number of companies processing 
shoreside did not change in 2015.
    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 
2018 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 because the tribal allocation 
is based primarily on the requests of the tribes, and these requests 
reflect the level of participation in the fishery that will allow them 
to exercise their treaty right to fish for Pacific whiting. 
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 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 2018.
    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 2018, which would 
be inconsistent with NMFS' responsibility to manage the

[[Page 3294]]

fishery consistent with the tribes' treaty rights. Given that there is 
a tribal request for allocation in 2018, 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, 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 
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.

    Dated: January 18, 2018.
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 2018 will be 17.5 
percent of the U.S. TAC.
* * * * *
[FR Doc. 2018-01182 Filed 1-23-18; 8:45 am]
 BILLING CODE 3510-22-P

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