[Federal Register Volume 80, Number 46 (Tuesday, March 10, 2015)]
[Proposed Rules]
[Pages 12611-12616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05384]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 141219999-5174-01]
RIN 0648-BE74


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; 2015 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 2015 Pacific whiting 
fishery under the authority of the Pacific Coast Groundfish Fishery 
Management Plan (FMP), the Magnuson Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 
2006. This proposed rule would allocate 17.5% of the U.S. Total 
Allowable Catch of Pacific whiting for 2015 to Pacific Coast Indian 
tribes that have a Treaty right to harvest groundfish, and would revise 
the regulation authorizing NMFS to reapportion unused allocation from 
the tribal allocation to the non-tribal sectors earlier in the fishing 
season.

DATES: Comments on this proposed rule must be received no later than 
April 9, 2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2015-0017, by any of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=

[[Page 12612]]

NOAA-NMFS-2015-0017, click the ``Comment Now!'' icon, complete the 
required fields, and enter or attach your comments.
    <bullet> Mail: William W. Stelle, Jr., Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070, Attn: Miako Ushio.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Miako Ushio (West Coast Region, NMFS), 
phone: 206-526-4644, and email: <a href="/cdn-cgi/l/email-protection#dfb2b6beb4b0f1aaacb7b6b09fb1b0bebef1b8b0a9"><span class="__cf_email__" data-cfemail="9ff2f6fef4f0b1eaecf7f6f0dff1f0fefeb1f8f0e9">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is accessible via the Internet at the Office of 
the Federal Register Web site at https://www.federalregister.gov. 
Background information and documents are available at the NMFS West 
Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific 
Fishery Management Council's Web site at http://www.pcouncil.org/.

Background

    The regulations at 50 CFR 660.50(d) establish the process by which 
the tribes with treaty fishing rights in the area covered by the 
Pacific Coast Groundfish Fishery Management Plan (FMP) request new 
allocations or regulations specific to the tribes, in writing, during 
the biennial harvest specifications and management measures process. 
The regulations state that ``the Secretary will develop tribal 
allocations and regulations under this paragraph in consultation with 
the affected tribe(s) and, insofar as possible, with tribal 
consensus.'' The procedures NOAA employs in implementing tribal treaty 
rights under the FMP, were designed to provide a framework process by 
which NOAA Fisheries can accommodate tribal treaty rights by setting 
aside appropriate amounts of fish in conjunction with the Pacific 
Fishery Management Council (Council) process for determining harvest 
specifications and management measures.
    Since the FMP has been in place, NMFS has been allocating a portion 
of the U.S. total allowable catch (TAC) (called Optimum Yield (OY) or 
Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the 
tribal fishery, following the process established in 50 CFR 660.50(d). 
The tribal allocation is subtracted from the U.S. Pacific whiting TAC 
before allocation to the non-tribal sectors.
    There are four tribes that can participate in the tribal whiting 
fishery: The Hoh, Makah, Quileute, and Quinault. 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 whiting fishery. However, to date, only the Makah 
Tribe has prosecuted a tribal fishery for Pacific whiting. They have 
harvested whiting every year 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. OYs and annual tribal allocation in metric tons (mt).

   Table 1--U.S. Optimum Yields (OYs) and Annual Tribal Allocation in
                            Metric Tons (mt)
------------------------------------------------------------------------
        Year                   U.S. OY              Tribal allocation
------------------------------------------------------------------------
2005................  269,069 mt..............  35,000 mt.
2006................  269,069 mt..............  32,500 mt.
2007................  242,591 mt..............  35,000 mt.
2008................  269,545 mt..............  35,000 mt.
2009................  135,939 mt..............  50,000 mt.
2010................  193,935 mt..............  49,939 mt.
2011................  290,903 mt..............  66,908 mt.
2012................  186,037 mt TAC \1\......  48,556 mt.
2013................  269,745 mt TAC..........  63,205 mt.
2014................  316,206 mt TAC..........  55,336 mt.
------------------------------------------------------------------------
\1\ Beginning in 2012, the United States started using the term Total
  Allowable Catch, based on the Agreement between the Government of the
  United States of America and the Government of Canada on Pacific Hake/
  Whiting.

    In 2009, NMFS, the states of Washington and Oregon, and the Treaty 
tribes started a process to determine the long-term tribal allocation 
for Pacific whiting; however, no long-term allocation has been 
determined. In order to ensure Treaty tribes continue to receive 
allocations, this rulemaking proposes the 2015 tribal allocation of 
Pacific whiting. This is an interim allocation not intended to set 
precedent for future allocations.

Tribal Allocation for 2015

    In exchanges between NMFS and the tribes during December of 2014, 
the Makah tribe indicated their intent to participate in the tribal 
whiting fishery in 2015. The Makah tribe has requested 17.5% of the 
U.S. TAC. The Quileute tribe and the Quinault Indian Nation indicated 
that they are not planning to participate in 2015. NMFS proposes a 
tribal allocation that accommodates the Makah request, specifically 
17.5% of the U.S. TAC. NMFS believes that the current scientific 
information regarding the distribution and abundance of the coastal 
Pacific whiting stock suggests that the 17.5% is within the range of 
the tribal treaty right to Pacific whiting.
    The Joint Management Committee (JMC), 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, 
2015. The U.S. TAC is 73.88% of the coastwide TAC. Until this TAC is 
set, NMFS cannot propose a specific amount for the tribal allocation. 
The whiting fishery typically begins in May, and the final rule 
establishing the whiting specifications for 2015 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 2015 TAC. However, to provide a basis for public input, NMFS 
is describing a range of potential tribal allocations in this proposed 
rule, applying the proposed approach to determining the tribal 
allocation to a range of potential TACs derived from historical 
experience.
    In order to project a range of potential tribal allocations for 
2015, NMFS is applying its proposed approach to determining the tribal 
allocation to the range of U.S. TACs over the last 10 years, 2005 
through 2014 (plus or minus 25% to capture variability in stock 
abundance). The range of TACs in that time period was 135,939 mt (2009) 
to 316,206 mt (2014). Applying the 25% variability results in a range 
of potential TACs of 101,954 mt to 395,258 mt for 2015. Therefore, 
using the proposed allocation rate of 17.5%, the potential range of the 
tribal allocation for 2015 would be between 17,842 and 69,170 mt.
    This proposed rule would also modify the regulatory mechanism 
whereby NMFS may, upon determining based on

[[Page 12613]]

discussion with the participating tribes and consideration of available 
catch information that some portion of the tribal allocation will not 
be used during the fishing year, reapportion that part to the non-
tribal sectors of the whiting fishery. Currently, regulations at 50 CFR 
660.131(h) call for reapportionment to occur on September 15 or as soon 
as practicable thereafter. NMFS has reapportioned Pacific whiting from 
the tribal sector to the non-tribal sectors in four of the past five 
years, after consultation with the participating (Makah) tribe to 
ensure such reapportionments will not limit tribal harvest 
opportunities. The timing of reapportionment in the regulation was 
intended to allow for the tribal fishery to proceed to the point where 
it could determine whether the full allocation was likely to be used, 
while providing time for the non-treaty sectors to catch the 
reallocated fish prior to the onset of winter weather conditions. In 
some years, the participating tribes may determine prior to September 
15 that they will not use a portion of the tribal allocation. In late 
2014, representatives of the Makah expressed an interest in possibly 
supporting earlier reapportionments to be used in situations such as 
this, and NMFS proposes amending regulations via this rulemaking to 
allow for that possibility.
    This proposed rule would be implemented under authority of Section 
305(d) of the Magnuson-Stevens Act, which gives the Secretary 
responsibility to ``carry out any fishery management plan or amendment 
approved or prepared by him, in accordance with the provisions of this 
Act.'' With this proposed rule, NMFS, acting on behalf of the 
Secretary, would ensure that the FMP is implemented in a manner 
consistent with treaty rights of four Northwest tribes to fish in their 
``usual and accustomed grounds and stations'' in common with non-tribal 
citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).

Classification

    NMFS has preliminarily determined that the management measures for 
the 2015 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. 
This rulemaking affects vessels engaged in small businesses. The Small 
Business Administration (SBA) has established size criteria for all 
major industry sectors in the U.S., including fish harvesting and fish 
processing businesses. A business involved in fish harvesting is a 
small business if it is independently owned and operated and not 
dominant in its field of operation (including its affiliates), and if 
it has combined annual receipts not in excess of $20.5 million for all 
its affiliated operations worldwide (79 FR 33647). For marinas and 
charter/party boats, a small business is defined as one with annual 
receipts, not in excess of $7.5 million. For purposes of rulemaking, 
NMFS is also applying the $20.5 million standard to catcher processors 
(C/Ps) because whiting C/Ps are involved in the commercial harvest of 
finfish. A seafood processor is a small business if it is independently 
owned and operated, not dominant in its field of operation, and employs 
500 or fewer persons on a full time, part time, temporary, or other 
basis, at all its affiliated operations worldwide. 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.
    Small organizations. The RFA defines small organizations as any 
nonprofit enterprise that is independently owned and operated and is 
not dominant in its field.
    Small governmental jurisdictions. The RFA defines small 
governmental jurisdictions as governments of cities, counties, towns, 
townships, villages, school districts, or special districts with 
populations of less than 50,000.
    This proposed rule would allocate 17.5% of the U.S. Total Allowable 
Catch of Pacific whiting for 2015 to Pacific Coast Indian tribes that 
have a Treaty right to harvest groundfish. This allocation rule was 
used for the 2014 fishery. The entities that this rulemaking directly 
impacts are the Makah Tribe, and the following in the non-tribal 
fisheries: Quota share (QS) holders in the Shorebased IFQ Program--
Trawl Fishery; vessels in the Mothership Coop (MS) Program--Whiting At-
sea Trawl Fishery; and the Catcher/Processor (C/P) Coop Whiting At-sea 
Trawl Fishery. These entities determine how much of their allocations 
are to be actually fished and what vessels are allowed to fish their 
allocations. This rulemaking proposes to allocate fish to the Makah 
Tribe. Based on groundfish ex-vessel revenues and on tribal enrollments 
(the population size of each tribe), the Makah Tribe is considered a 
small entity.
    Currently, the Shorebased IFQ Program is composed of 149 Quota 
Share permits/accounts, 152 vessel accounts, and 43 first receivers. 
The MS fishery is currently composed of a single coop, with six 
mothership processor permits, and 34 Mothership/Catcher-Vessel (MS/CV) 
endorsed permits, with three permits each having two catch history 
assignments. The C/P Program is composed of 10 C/P permits owned by 
three companies that have formed a single coop.
    Many companies participate in two sectors and some participate in 
all three sectors. All of the 34 mothership catch history assignments 
are associated with a single mothership coop and all ten of the 
catcher-processor permits are associated with a coop. These coops are 
considered large entities from several perspectives; they have 
participants that are large entities, whiting coop revenues exceed or 
have exceeded the $20.5 million, or coop members are connected to 
American Fishing Act permits or coops where the NMFS Alaska Region has 
determined they are all large entities (79 FR 54597; September 12, 
2014). After accounting for cross participation, multiple QS account 
holders, and affiliation through ownership, NMFS estimates that there 
are 103 non-tribal entities directly affected by these proposed 
regulations, 89 of which are considered ``small'' businesses.
    For the years 2010 to 2014, the total whiting fishery (tribal and 
non-tribal) averaged harvests of approximately 183,000 mt annually, 
worth over $43 million in ex-vessel revenues. As the U.S. whiting TAC 
has been highly variable during this time, so have harvests. In the 
past five years, harvests have ranged from 160,000 mt (2012) to 264,000 
mt (2014). Ex-vessel revenues have also varied. Annual ex-vessel 
revenues have ranged from $30 million (2010) to $65 million (2013). 
Total whiting harvest in 2013 was approximately 233,000 mt worth $65 
million, at an ex-vessel price of $280 per mt. Ex-vessel revenues in 
2014 were over $64 million with a harvest of 264,000 tons and ex-vessel 
price of $240 per mt. The prices for whiting are largely determined by 
the world market

[[Page 12614]]

for groundfish, because most of the whiting harvested is exported. Note 
that the use of ex-vessel values does not take into account the 
wholesale or export value of the fishery or the costs of harvesting and 
processing whiting into a finished product. NMFS does not have 
sufficient information to make a complete assessment of these values.
    The Pacific whiting fishery harvests almost exclusively Pacific 
whiting. While bycatch of other species occurs, the fishery is 
constrained by bycatch limits on key overfished species. This is a 
high-volume fishery with low ex-vessel prices per pound. This fishery 
also has seasonal aspects based on the distribution of whiting off the 
west coast.
    Since 1996, there has been a tribal allocation of the U.S. whiting 
TAC. Tribal fisheries undertake a mixture of fishing activities that 
are similar to the activities that non-tribal fisheries undertake. 
Tribal harvests have been delivered to both shoreside plants and at-sea 
processors. These processing facilities also process fish harvested by 
non-tribal fisheries.
    This proposed rule would allocate 17.5% of Pacific whiting to the 
tribal fishery, and would ultimately determine how much is left for 
allocation to the non-tribal sectors, which are the Shorebased IFQ 
Program--Trawl Fishery; Mothership Coop (MS) Program--Whiting At-sea 
Trawl Fishery; and C/P Coop Program--Whiting At-sea Trawl Fishery. The 
amount of whiting allocated to both the tribal and non-tribal sectors 
is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting 
that account for research catch and for bycatch in other fisheries are 
deducted. The amount of the tribal allocation is also deducted directly 
from the TAC. After accounting for these deductions, the remainder is 
the commercial harvest guideline. This guideline is then allocated 
among the three non-tribal sectors as follows: 34 percent for the C/P 
Coop Program; 24 percent for the MS Coop Program; and 42 percent for 
the Shorebased IFQ Program.
    The effect of the tribal allocation on non-tribal fisheries will 
depend on the level of tribal harvests relative to their allocation and 
the reapportioning process. Total whiting harvest in 2014 was 
approximately 264,000 mt worth $64 million, at an ex-vessel price of 
$240 per mt. Assuming a similar harvest level and ex-vessel price in 
2015, if the tribe were to harvest 17.5%, the approximate value of that 
harvest would be $11 million. If the tribes do not harvest their entire 
allocation, there are opportunities during the year to reapportion 
unharvested tribal amounts to the non-tribal fleets. For example, last 
year, NMFS executed two such reapportionments. In the first 
reapportionment, the best available information through September 12, 
2014 indicated that at least 25,000 mt of the tribal allocation would 
not be harvested by December 31, 2014. To allow for full utilization 
the resource, NMFS reapportioned 25,000 mt to the shorebased IFQ 
Program, C/P Coop and MS Coop in proportion to each sector's original 
allocation on September 12, 2014. Reapportioning this amount was 
expected to allow for greater attainment of the OY while not limiting 
tribal harvest opportunities for the remainder of the year. 
Subsequently, the C/P Coop, MS Coop, and Shorebased IFQ sectors 
expressed an interest in additional harvest of Pacific whiting via 
written notice to NMFS.
    In the second reapportionment, the best available information on 
October 22, 2014, indicated that an additional 20,000 mt of the tribal 
allocation would not be harvested by December 31, 2014. To allow for 
full utilization the resource, NMFS reapportioned an additional 20,000 
mt of the non-tribal sector and distributed to the C/P Coop and MS Coop 
in proportion to each sector's original allocation on October 23, 2014. 
The Shorebased IFQ Program's share of the second reapportionment was 
not distributed due to concerns regarding Chinook salmon catch.
    Reapportioning a combined total of 45,000 mt was expected to allow 
for greater attainment of the OY while not limiting tribal harvest 
opportunities for the remainder of the year. The revised Pacific 
whiting allocations for 2014 were: Tribal 10,336 mt, C/P Coop 103,486 
mt; MS Coop 73,049 mt; and Shorebased IFQ Program 127,835 mt.
    NMFS considered two alternatives for this action: The ``No-Action'' 
and the ``Proposed Action.'' NMFS did not consider a broader range of 
alternatives to the proposed allocation. The tribal allocation is based 
primarily on the requests of the tribes. These requests reflect the 
level of participation in the fishery that will allow them to exercise 
their treaty right to fish for whiting. Under the Proposed Action 
alternative, NMFS proposes to set the tribal allocation percentage at 
17.5%, as requested by the tribes. This would yield a tribal allocation 
of between 17,842 and 69,170 mt for 2015. Consideration of a percentage 
lower than the tribal request of 17.5% is not appropriate in this 
instance. As a matter of policy, NMFS has historically supported the 
harvest levels requested by the tribes. Based on the information 
available to NMFS, the tribal request is within their tribal treaty 
rights. A higher percentage would arguably also be within the scope of 
the treaty right. However, a higher percentage would unnecessarily 
limit the non-tribal fishery.
    Under the no-action alternative, NMFS would not make an allocation 
to the tribal sector. This alternative was considered, but the 
regulatory framework provides for a tribal allocation on an annual 
basis only. Therefore, no action would result in no allocation of 
Pacific whiting to the tribal sector in 2015, 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 2015, this alternative received no further 
consideration.
    NMFS believes this proposed rule would not adversely affect small 
entities. This reapportioning process allows unharvested tribal 
allocations of whiting, fished by small entities, to be fished by the 
non-tribal fleets, benefitting both large and small entities. 
Nonetheless, NMFS has prepared this 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.
    NMFS issued Biological Opinions under the ESA on August 10, 1990, 
November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, 
and December 15, 1999 pertaining to the effects of the Pacific Coast 
groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River 
spring/summer, Snake River fall, upper Columbia River spring, lower 
Columbia River, upper Willamette River, Sacramento River winter, 
Central Valley spring, California coastal), coho salmon (Central 
California coastal, southern Oregon/northern California coastal), chum 
salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake 
River, Ozette Lake), and steelhead (upper, middle and lower Columbia 
River, Snake River Basin, upper Willamette River, central California 
coast, California Central Valley, south/central California, northern 
California, southern California). These biological opinions have 
concluded that implementation of the FMP for the Pacific Coast 
groundfish fishery was not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the

[[Page 12615]]

destruction or adverse modification of critical habitat.
    NMFS issued a Supplemental Biological Opinion on March 11, 2006, 
concluding that neither the higher observed bycatch of Chinook in the 
2005 whiting fishery nor new data regarding salmon bycatch in the 
groundfish bottom trawl fishery required a reconsideration of its prior 
``no jeopardy'' conclusion. NMFS also reaffirmed its prior 
determination that implementation of the Groundfish PCGFMP is not 
likely to jeopardize the continued existence of any of the affected 
ESUs. The effect of the Pacific whiting fishery on protected Chinook 
salmon is currently under ESA Section 7 consultation to reconsider this 
``no jeopardy'' conclusion. The trigger for this reinitiation of 
consultation was the 2014 Pacific whiting fishery exceeding the Chinook 
salmon incidental take statement from the 1999 Biological Opinion by a 
level similar to 2005. NMFS has considered the effects of this proposed 
rule on listed salmonids, consistent with ESA Section 7(a)(2) and 7(d). 
The proposed action is not likely to adversely affect, or would not 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of designated critical habitat.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon 
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as 
threatened under the ESA. The 1999 biological opinion concluded that 
the bycatch of salmonids in the Pacific whiting fishery were almost 
entirely Chinook salmon, with little or no bycatch of coho, chum, 
sockeye, and steelhead.
    On December 7, 2012, NMFS completed a biological opinion concluding 
that the groundfish fishery is not likely to jeopardize non-salmonid 
marine species including listed eulachon, green sturgeon, humpback 
whales, Steller sea lions, and leatherback sea turtles. The opinion 
also concludes that the fishery is not likely to adversely modify 
critical habitat for green sturgeon and leatherback sea turtles. An 
analysis included in the same document as the opinion concludes that 
the fishery is not likely to adversely affect green sea turtles, olive 
ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific 
right whales, blue whales, fin whales, sperm whales, Southern Resident 
killer whales, Guadalupe fur seals, or the critical habitat for Steller 
sea lions.
    Steller sea lions and humpback whales are protected under the 
Marine Mammal Protection Act (MMPA). Impacts resulting from fishing 
activities proposed in this rulemaking are discussed in the FEIS for 
the 2015-2016 groundfish fishery specifications and management 
measures. West coast pot fisheries for sablefish are considered 
Category II fisheries under the MMPA's List of Fisheries, indicating 
occasional interactions. All other west coast groundfish fisheries, 
including the trawl fishery, are considered Category III fisheries 
under the MMPA, indicating a remote likelihood of or no known serious 
injuries or mortalities to marine mammals. MMPA section 101(a)(5)(E) 
requires that NMFS authorize the taking of ESA-listed marine mammals 
incidental to U.S. commercial fisheries if it makes the requisite 
findings, including a finding that the incidental mortality and serious 
injury from commercial fisheries will have negligible impact on the 
affected species or stock. As noted above, NMFS concluded in its 
biological opinion for the groundfish fisheries that these fisheries 
were not likely to jeopardize Steller sea lions or humpback whales. The 
eastern distinct population segment of Steller sea lions was delisted 
under the ESA on November 4, 2013 (78 FR 66140). On September 4, 2013, 
based on its negligible impact determination dated August 28, 2013, 
NMFS issued a permit for three years to authorize the incidental taking 
of humpback whales by the sablefish pot fishery (78 FR 54553).
    On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) 
issued a biological opinion concluding that the groundfish fishery will 
not jeopardize the continued existence of the short-tailed albatross. 
The FWS also concurred that the fishery is not likely to adversely 
affect the marbled murrelet, California least tern, southern sea otter, 
bull trout, nor bull trout critical habitat.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the FMP. Consistent with the Magnuson-Stevens 
Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific 
Council is a representative of an Indian tribe with federally 
recognized fishing rights from the area of the Council's jurisdiction. 
In addition, NMFS has coordinated specifically with the tribes 
interested in the whiting fishery regarding the issues addressed by 
this rulemaking.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: March 3, 2015.
Eileen Sobeck,
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., 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 2015 will be 17.5% 
of the U.S. TAC.
* * * * *
0
3. In Sec.  660.131, revise paragraph (h) to read as follows:


Sec.  660.131  Pacific whiting fishery management measures.

* * * * *
    (h) Reapportionment of pacific whiting. (1) Upon receipt of written 
notice to the Regional Administrator from the tribe(s) participating in 
the fishery that they do not intend to use a portion of the tribal 
allocation, the Regional Administrator may, no earlier than 7 days 
following notice to other treaty tribes with rights to whiting, 
reapportion any remainder to the other sectors of the trawl fishery as 
soon as practicable after receiving such notice. If no such 
reapportionment has occurred prior to September 15 of the fishing year, 
the Regional Administrator will, based on discussions with 
representatives of the tribes participating in the Pacific whiting 
fishery for that fishing year, consider the tribal harvests to date and 
catch projections for the remainder of the year relative to the tribal 
allocation of Pacific whiting, as specified at Sec.  660.50. That 
portion of the tribal allocation that the Regional Administrator 
determines will not be used by the end of the fishing year may be 
reapportioned to the other sectors of the trawl fishery on September 15 
or as soon as practicable thereafter. Subsequent reapportionments may 
be made based on subsequent determinations by the Regional 
Administrator based on the factors described above in order to ensure 
full utilization of the resource. However, no reapportionments will

[[Page 12616]]

occur after December 1 of the fishing year.
    (2) NMFS will reapportion unused tribal allocation to the other 
sectors of the trawl fishery in proportion to their initial 
allocations.
    (3) The reapportionment of surplus whiting will be made effective 
immediately by actual notice under the automatic action authority 
provided at Sec.  660.60(d)(1).
    (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.

[FR Doc. 2015-05384 Filed 3-9-15; 8:45 am]
 BILLING CODE 3510-22-P


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