[Federal Register Volume 61, Number 50 (Wednesday, March 13, 1996)]
[Proposed Rules]
[Pages 10303-10308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6054]
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DEPARTMENT OF COMMERCE
50 CFR Part 663
[Docket No. 960304057-6057-01; I.D. 020596A]
RIN 0648-AH84
Pacific Coast Groundfish Fishery; Framework for Treaty Tribe
Harvest of Pacific Groundfish
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This rule proposes a framework that allows NMFS, acting on
behalf of the Secretary of Commerce (Secretary), to implement the
rights of the Washington coastal treaty Indian tribes to fish for
groundfish in their usual and accustomed fishing areas (U&A area). The
Secretary requests public comments on the proposed framework and on the
amount of Pacific whiting to be set aside for the Makah Indian Tribe
(Makahs) for 1996 under the provisions of this rule. The intent of this
rule is to accommodate treaty fishing rights.
DATES: Comments will be accepted on or before April 12, 1996.
ADDRESSES: Comments may be mailed to William Stelle, Jr., Director,
Northwest Region, NMFS, 7600 Sand Point Way NE., BIN C15700, Seattle,
WA 98115. Information relevant to this proposed rule is available for
public review during business hours at the Office of the Director,
Northwest Region, NMFS.
FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140.
SUPPLEMENTARY INFORMATION: NMFS is issuing a proposed rule, based on
the agency's authority under the Pacific Coast Groundfish Fishery
Management Plan (FMP) and the Magnuson Fishery Conservation and
Management Act (Magnuson Act) to amend the FMP's implementing
regulations to establish a clear procedure for implementing the
Washington coastal treaty Indian tribes' rights to harvest Pacific
groundfish. At the same time, NMFS is seeking public comment on the
amount of Pacific whiting to set aside in 1996 for the Makahs under the
procedures of this rule. For purposes of this rule, Washington coastal
treaty Indian tribes means the Hoh, Makah, and Quileute Indian Tribes
and the Quinault Indian Nation.
Background
The FMP generally acknowledges that certain treaty Indian tribes
have secured rights to harvest fish from their U&A area. However, the
FMP's implementing regulations currently do not explicitly provide a
process by which NMFS can set aside, from the annual harvest guideline
or quota, amounts of Pacific groundfish for exclusive harvest by treaty
Indian tribes. Since 1989 NMFS, at the recommendation of the Pacific
Fishery Management Council (Council), has set aside, through the annual
groundfish management process, a specific amount of sablefish for
harvest by the Pacific Coast treaty Indian tribes. In 1992, NMFS first
imposed black rockfish trip limits on commercial hook and line vessels
fishing in certain areas off the Washington coast. The same regulation
created a process for establishing a tribal rockfish harvest guideline
during the annual groundfish management process. Tribal fishermen
fishing under this harvest guideline are not subject to the black
rockfish trip limit.
In June of 1995, the Makahs informed NMFS and the Council that they
would seek to exercise their treaty rights to harvest Pacific whiting,
Merluccius productus. At the August 1995 Council meeting, the Makahs
requested that 25,000 metric tons (mt) of whiting be set aside from the
1996 U.S. harvest guideline for exclusive harvest by the Makahs.
At the October 1995 Council meeting, NMFS and NOAA General Counsel
advised the Council that the Federal Government recognizes that
Washington coastal treaty Indian tribes, by virtue of their treaties
with the United States, have harvest rights to Pacific coast
groundfish.
NMFS believes the Makahs have a treaty right to harvest one-half of
the harvestable surplus of the Pacific whiting stocks found in their
U&A area, in accordance with treaty fishing rights elaborated by a U.S.
District Court in the case United States v. Washington. NMFS believes
that the allocation principles applicable to the tribal treaty right to
Pacific whiting and all other groundfish found in the treaty tribes'
U&A areas are those established in State of Washington v. Washington
State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99
S.Ct. 3055, 3074 (1979), and Makah Indian Tribe v. Brown, No. C-85-
1606R, and United States v. Washington, Civil No. 9213--Phase I,
Subproceeding No. 92-1 (W.D. Wash., Order on Five Motions Relating to
Treaty Halibut Fishing dated December 29, 1993). Passenger Fishing
Vessel establishes the rule that ``an equitable measure of the common
right would initially divide the harvestable portion of each run that
passes through a `usual and accustomed' place into approximately equal
treaty and non-treaty shares.'' Makah v. Brown held that:
In formulating his allocation decisions, the Secretary must
accord treaty fishers the opportunity to take 50 percent of the
harvestable surplus of halibut in their usual and accustomed fishing
grounds, and the harvestable surplus must be determined according to
the conservation necessity principle.
In the shellfish subproceeding (89-3) in United States v.
Washington, the court found that the right to take fish that was
reserved in the treaties must be read to apply to all fish, without any
species limitation. The court found:
The fact that some species were not taken before treaty time--
either because they were inaccessible or the Indians chose not to
take them--does not mean that their right to take such fish was
limited.
At the October Council meeting, NMFS and NOAA Northwest General
Counsel advised the Council that Indian treaty rights were ``other
applicable law'' under the Magnuson Act that required NMFS to set aside
an amount of whiting for harvest by the Makahs in 1996 consistent with
their treaty rights. NMFS advised the Council that discussions between
NMFS and the Makahs to determine the appropriate amount of whiting to
be set aside in 1996 had not yet been completed, and that some
disagreement between NMFS and the Makahs as to the proper method of
determining the amount still existed. Despite the advice by NMFS and
NOAA Northwest General Counsel, the Council voted 7-4 against
recommending that NOAA/NMFS recognize that the Washington coastal
treaty tribes have treaty rights to Pacific whiting and set aside any
amount of whiting for harvest by the Makahs in 1996. The Council voted
after consideration of testimony from the State of Oregon's Attorney
General's Office that a treaty tribe's right to harvest fish from its
U&A area only exists for those species to which the tribe can show
historical catch or access at the time that the treaty was signed.
NMFS cannot accept the Council's recommendation because it is
contrary to treaty fishing rights law. Consequently, NMFS proposes to
[[Page 10304]]
amend the FMP's implementing regulations to provide a framework process
by which NMFS can accommodate treaty rights by setting aside specific
amounts of Pacific groundfish for harvest by the treaty Indian tribes
or by implementing regulations to otherwise accommodate treaty rights.
At the same time, NMFS proposes to modify the groundfish regulations as
described below to consolidate regulations affecting treaty Indian
fishing into one section and to accommodate the treaty trawl harvest of
midwater groundfish species. In addition, NMFS seeks public comment on
the amount of Pacific whiting it will set aside for exclusive harvest
by the Makahs in 1996.
When the Council considered the Makahs' request, the combined
United States and Canada coastwide acceptable biological catch (ABC)
was projected to be 123,000 mt. During the last few years, the U.S.
harvest guideline was 80 percent of the combined ABC. Based on the
projected U.S. and Canadian combined ABC of 123,000 mt, the U.S.
harvest guideline was projected to be 98,400 mt. In late January,
during the preparation of this proposed rule, a new whiting stock
assessment, based on the 1995 NMFS hydroacoustic survey, was completed
which resulted in the projected ABC for both the United States and
Canada increasing to at least 250,000 mt and possibly as high as
350,000 mt. At 80 percent of the combined ABC, the U.S. harvest
guideline now would increase to at least 200,000 mt and possibly as
high as 280,000 mt. At its March 11-15, 1996, meeting in Portland, OR,
the Council will recommend the level for a U.S. harvest guideline.
Proposed Rule
The proposed rule would be implemented under authority of Section
305(d) of the Magnuson 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).
Under the framework to be established by this proposed rule, NMFS
would be able to accommodate the rights of the treaty tribes to fish
for groundfish in their U&A area by setting aside appropriate amounts
of fish through the framework process for setting annual harvest
specifications or by means of specific regulations. The framework
process would be initiated by a request to NMFS for a set-aside or
regulations from one or more Washington coastal treaty Indian tribes
prior to the first of the two annual groundfish meetings of the
Council. NMFS would consider the tribal requests, recommendations from
the Council, and comments of the public, and would determine the amount
of the set-aside for each species or the appropriate regulatory
language. NMFS would announce the tribal set-asides in the Federal
Register when the annual harvest and allocation specifications for the
groundfish fishery are announced. Tribal groundfish set-asides would be
managed by the tribes.
The proposed rule also describes the physical boundaries of the
Washington Coastal treaty Indian tribes' U&A areas, and acknowledges
these boundaries may be revised as ordered by a Federal court. These
areas are the same as those set out in NMFS regulations for salmon
since 1987 and for Pacific halibut since 1986.
A valid treaty Indian identification card issued pursuant to 25 CFR
part 249, subpart A, would be prima facie evidence that the holder is a
member of the Pacific Coast treaty Indian tribe named on the card.
Participation in a tribal fishery for Pacific Coast groundfish
authorized under these regulations would not require a Federal limited
entry permit. However, fishing by members of a Washington coastal
treaty Indian tribe outside the tribe's U&A area or for a species not
covered by a set-aside or regulation under this rule would be subject
to the same regulations as other, non-treaty persons participating in
the fishery.
Harvests from tribal fisheries under this regulation would not be
subject to, or alter rules concerning, harvesting or processing
apportionments in the non-treaty fisheries; the whiting allocation
regulations at 663.23(b)(4) are proposed to be modified to clarify
this. The proposed rule also would allow release to the non-treaty
fishery of whiting set-aside for the tribes that the tribes will not
use.
The regulations governing tribal harvest of black rockfish
described above would be moved to this section to consolidate all
tribal regulations into one section. In addition, the harvest guideline
would be changed from a harvest guideline for all rockfish to one for
black rockfish. When the black rockfish provision was added to the
regulations, the harvest guideline was only necessary to exempt tribal
members from the black rockfish trip limits (since the open access trip
limits on other rockfish were not constraining on the tribal hook and
line vessels). However, the data collection system did not distinguish
black rockfish from other rockfish, so the harvest guideline was
established for all rockfish. The tribes now can and do distinguish
black rockfish from other rockfish, so the harvest guideline would be
changed to one for black rockfish only, rather than all rockfish. The
tribal members fish with hook and line for other rockfish within the
open access fishery, and have no need for a special regulation or
specific allocation. Also, at the time the regulation was adopted, the
only tribal fishery that harvested rockfish was the hook and line
fishery, which this rule was adopted to cover. Therefore, this rule is
being modified to clarify that the harvest guideline only applies to
the hook and line fishery.
The Makahs also plan to harvest midwater species other than
whiting, using midwater trawl gear in their U&A area. Rather than
attempt to quantify their treaty entitlement to these species at this
early point in the process, the Makahs have agreed that their vessels
will trawl for these other midwater species in conformance with trip
limits established for the limited entry fishery (Sec. 663.24(k)). NMFS
agrees that this is a reasonable accommodation of the treaty right,
particularly in view of data limitations and uncertainty in quantifying
treaty rights.
As a housekeeping matter, Sec. 663.23(b)(1)(i) is proposed to be
deleted because it is unnecessary. This paragraph states that: ``The
trip limit for a vessel engaged in fishing with a pelagic trawl with
mesh size less than 4.5 inches in the Conception or Monterey subareas
is 500 pounds or 5 percent by weight of all fish on board, whichever is
greater, of the species group composed of bocaccio, chilipepper,
splitnose, and yellowtail rockfishes per fishing trip.'' This paragraph
has been in the regulations since 1982 when the FMP first was
implemented (47 FR 43980, October 5, 1982). The management of the
fishery has evolved so that NMFS and the Council annually set and
adjust trip limits for various species, including the Sebastes complex
that contains those species listed in Sec. 663.23(b)(1)(i). Therefore,
the trip limits in this paragraph are no longer necessary, as the
species are adequately protected by the current trip limit system.
[[Page 10305]]
Makah Tribe Pacific Whiting Set Aside for 1996
Pacific whiting, formerly a ``trash'' species for which there were
few markets, has been fully exploited by U.S. non-treaty fishermen and
processors since 1989, and is the object of intense competition between
shoreside and at-sea processors and non-treaty fishermen.
In 1994, NMFS recognized the existence of an Indian treaty right to
Pacific Coast groundfish (all species including Pacific whiting) for
the Washington coastal treaty Indian tribes (exchange of correspondence
between the General Counsel, National Oceanic and Atmospheric
Administration, dated October 13, 1994, and the Solicitor, Department
of the Interior, dated October 21, 1994).
The remaining issue is the quantification of the Makahs' right to
Pacific whiting in the Makahs' U&A area. Under the legal principles
discussed above, the question becomes one of attempting to determine
what amount of fish constitutes half the harvestable surplus of Pacific
whiting in the Makahs' U&A area, determined according to the
conservation necessity principle. The conservation necessity principle
means that the determination of the amount of fish available for
harvest must be based solely on resource conservation needs. This
determination is difficult because, with the exception of Makah v.
Brown (the Pacific halibut case), most of the legal and technical
precedents are based on the biology, harvest, and conservation
requirements for Pacific salmon, which are very different from those
for Pacific whiting. Quantifying the tribal right to whiting is also
complicated by data limitations and by the uncertainties of Pacific
whiting biology and conservation requirements.
In determining the appropriate Makah whiting allocation, NMFS's
initial proposal is to rely on biomass and harvest estimates for
Pacific whiting, which are the only data available, and to base the
Makahs' treaty entitlement on the whiting biomass in the Makahs' U&A
area, taking into account the conservation necessity principle.
The Makahs have not stated what they believe is their ultimate
treaty right, nor what method they would propose to use in quantifying
the right. Rather, the Makahs have advanced two proposals for 1996 only
(described below), both of which they believe to be within the
parameters of the treaty right. The Makahs initially proposed an
allocation that would result in their harvesting up to approximately 25
percent of the total U.S. ABC in the Makahs' U&A area. After further
discussions with NMFS, the Makahs made a compromise proposal for an
allocation of 15,000 mt for 1996.
In Makah v. Brown, the Pacific halibut case, the court set the
amount of the tribal treaty right as half the amount of halibut that
was actually harvested in the tribal U&A area, based on historical
statistics for harvests by both treaty and non-treaty fisheries that
occurred in the tribal U&A area. However, the Pacific whiting fishery
differs from the halibut fishery in that there is no established
pattern of harvest closely linked to the area of the tribal U&A area.
The current Pacific whiting management regime assumes that harvests
will be generally proportionate to biomass distribution, but so far
NMFS has not imposed management measures to enforce proportional
harvest in the various subareas.
The Makahs argue that under the conservation necessity principle,
NMFS must show that a restriction on a tribal fishery ``is required to
prevent demonstrable harm to the actual conservation of fish.'' United
States v. Washington, 384 F. Supp. 312, 415 (W.D. Wash. 1974) (emphasis
added). They point out that NMFS' proposal to base the tribal
entitlement on biomass in the Makahs' U&A area, is not required to
prevent demonstrable harm to the resource. The Makahs argue further
that ``management measures cannot be applied to the treaty fishery that
are not applied to other segments of the fishery.'' They argue that
since NMFS has not imposed a specific limit on the amount of whiting
that may be harvested in the Makahs' U&A area, NMFS has no right to
restrict the treaty Indian fishery separately. Finally, the Makahs
argue that basing tribal allocations on the whiting biomass in the
Makahs' U&A area does not account for the quantity of whiting that pass
through their fishing area.
The Makahs' initial proposal was based on whiting biomass from a
larger area than the Makahs' U&A area. Since NMFS had never managed the
fishery based on biomass estimates for subdivisions of the coast, the
Makahs would not agree to focusing on an area the size of the Makahs'
U&A area. The smallest area they would consider using for a biomass
estimate is the North Columbia/Vancouver area. This proposal would give
the Makahs about 25 percent of the U.S. share of the total U.S. Pacific
whiting ABC for the Pacific Coast (equivalent to 25 percent of the
harvest guideline). It is based on comparing the biomass between the
``South Columbia'' and the ``North Columbia/Vancouver'' areas, where 98
percent of the U.S. harvest has occurred in recent years. (Note: To
protect juvenile whiting and sensitive salmon stocks that exist south
of 42 deg. N. lat., the United States prohibits at-sea processors from
operating south of 42 deg. N. lat. As a result, Pacific whiting harvest
is concentrated north of 42 deg. N. lat.). About half of the northern
biomass occurs in the Columbia/Vancouver area, and about half in the
South Columbia area. The Makahs conclude from this that the harvest
should be split equally (50:50) between the two areas, and proposed
that it be allocated half of the harvest in ``North Columbia/
Vancouver,'' or 25 percent of the total U.S. harvest guideline.
As described earlier, when the Makahs made this proposal, the
projected 1996 U.S. harvest guideline was 98,400 mt. Under this
assumption, the Makahs' whiting allocation would have been 24,600 mt.
The new whiting stock assessment now results in a projected harvest
guideline of at least 200,000 mt and possibly as high as 280,000 mt.
Under the revised projected range of possible U.S. harvest guidelines,
the Makahs' whiting allocation under the Makahs' proposal would be at
least 50,000 mt and as high as 70,000 mt.
The following information places the Makahs' proposal in
geographical context. The entire Pacific Coast groundfish fishery
management area (from 3-200 miles offshore from Canada to Mexico) is
divided into five management subareas. From south to north these are
Conception (Mexico to 36 deg. N. lat.), Monterey (36 deg. N. lat. to
40 deg.30' N. lat.), Eureka (40 deg.30' N. lat. to 43 deg. N. lat.),
Columbia (43 deg. N. lat. to 47 deg.30' N. lat.), and Vancouver
(47 deg.30' N. lat. to Canada). The dividing line between ``South
Columbia'' and ``North Columbia/Vancouver'' referred to in the Makahs'
proposal is at approximately the latitude of Cape Falcon, Oregon
(45 deg.46' N. lat.). The Makahs' U&A area is in the area south of the
international boundary with Canada, north of 48 deg.02'15'' N. lat.
(Norwegian Memorial), and east of 125 deg.44'00'' W. long. The Makahs'
U&A area is approximately 8.4 percent of the Columbia/Vancouver
latitudinal range (i.e., from Canada to 43 deg. N. lat.), where most of
the whiting harvest occurs.
NMFS' initial proposal is to quantify the Makahs' treaty right by a
method that is linked to the biomass within the Makahs' U&A area (9.4
percent of the U.S. portion of the biomass), enlarged by a multiplier
described below. The multiplier is NMFS' attempt to accommodate the
conservation
[[Page 10306]]
necessity principle established in case law. We believe the multiplier,
which is based in past experience, represents the highest harvest level
that can be accommodated without raising conservation concerns.
Assuming that an exploitation rate with a value of ``1'' represents
harvest directly correlated to the percentage of biomass in the Makahs'
U&A area, NMFS proposes to use an exploitation rate multiplier of 1.375
to determine the total allowable harvest in the area. This figure
(1.375) is the ratio between the 1989 exploitation rate in the Eureka
area (33 percent) and the 1989 average exploitation rate (24 percent)
for the Eureka, Columbia, and Vancouver areas (which is where nearly
all of the whiting harvest occurs). The 1989 exploitation rate in the
Eureka area is the largest upward deviation from the average
exploitation rate for any statistical area in either 1989 or 1992,
which are the years, after whiting became fully exploited, for which we
have data on biomass distribution and harvest rate. (The data on
distribution and biomass come from NMFS's triennial trawl surveys).
Multiplying the percentage of exploitable biomass in the Makahs'
area (9.4 percent) times the exploitation rate multiplier 1.375 yields
12.9 percent. Based on past experience, this is the percentage of the
U.S. ABC (harvest guideline) that NMFS believes can safely be taken
from the Makahs' area on an annual basis. Under the equal sharing
principle, one-half of that (6.5 percent) should be allocated for
harvest by the Makahs in their U&A area. For 1996, under the earlier
assumption for a U.S. harvest guideline of 98,400 mt, the Makahs'
whiting allocation would be 6,359 mt. Based on the new stock
assessment, however, the Makahs' allocation under the NMFS proposal
would be at least 13,000 mt, and possibly as much as 18,000 mt
depending on the final U.S. harvest guideline adopted. Also, if
analysis of the NMFS 1995 hydroacoustic survey information results in a
different biomass distribution, or a higher multiplier, NMFS would
substitute the new information in determining the actual amount of
whiting to set aside for harvest by the Makahs in 1996 under the NMFS
proposal.
NMFS believes that a biomass-based approach to quantifying the
Makahs' treaty right, linked to the Makahs' U&A area and adjusted
according to the conservation necessity principle, is justified by the
following considerations:
(1) Whiting stock assessments (which are used to establish the
annual ABC and harvest guideline) assume that whiting are exploited at
the same rate throughout the management area. This assumption of
uniform exploitation rate is the safest biological assumption until it
can be demonstrated that a different geographic pattern of harvest is
not harmful.
(2) Although the U.S. and Canada are not in complete agreement on
the bi-national whiting allocation, the distribution of biomass is
recognized by both nations as a sound management basis for fisheries
allocations.
(3) If the Makahs' proposal became the minimum annual harvest
allocation, it would concentrate at least 25 percent of the coastwide
annual harvest into the Makahs' U&A area on a continual basis, while
the area had only 9.4 percent of the harvestable biomass when last
surveyed in 1992. The percentage harvest in the area would actually be
greater than 25 percent if a portion of the non-treaty fishery also
occurred there. A high degree of harvest concentration creates a
conservation concern if it (1) involves a large fraction of the total
harvest; (2) deviates greatly from the average harvest rate for the
fishing area; and/or (3) will occur indefinitely. Although data are not
presently available that allow us to evaluate exactly the biological
effects of the Makahs' proposal, it raises all three of these concerns.
Other potential biological impacts associated with a high degree of
harvest concentration on whiting in the Makahs' area include disturbing
the schooling pattern of the whiting, and increased bycatch of other
species.
During subsequent discussions between NMFS and the Makahs, in
recognition of the unresolved legal and technical difficulties in
quantifying the treaty right to Pacific whiting, the Makahs advanced a
compromise consisting of a 1-year interim allocation of 15,000 mt for
the Makahs in 1996. The proposed 15,000-mt allocation does not reflect
either the NMFS or the Makahs' view of the amount of whiting the Makahs
are entitled to under their Treaty. It represents a compromise proposal
by the Makahs that, according to the Makahs, reflects the minimum
amount of whiting necessary to initiate a fishery by the Makahs. If
implemented by NMFS for 1996, it would be intended for one year only,
and would not be considered to set any precedent regarding either
quantification of the Makahs' treaty entitlement or future allocations.
At the time it was proposed, adopting the 15,000-mt compromise for 1996
was intended to accommodate the Makahs' treaty right and provide NMFS
and the Makahs additional time to determine a long-term quantification
of the right. This Makah proposal is more than twice the amount of
whiting that would have been allocated to the Makahs under the NMFS
proposal (using the initial assumption of a U.S. harvest guideline of
98,400 mt). However, based on the new stock assessment, under which the
NMFS proposal results in potential allocations to the Makahs of 13,000
to 18,000 mt, the NMFS proposal and the Makahs' compromise proposal for
an allocation of 15,000 mt are not markedly different.
Therefore, NMFS seeks public comment on each of the three
proposals, explained above, on the appropriate amount of whiting to
allocate to the Makahs in 1996. The three alternatives include the
Makahs' initial proposal of 25 percent of the 1996 U.S. harvest
guideline, the NMFS proposal of 6.5 percent, and the Makahs' compromise
1-year allocation of 15,000 mt. This allocation also would include a
provision to release to the non-treaty fishery any portion of the
Makahs' set aside estimated by the Tribe not to be needed by them in
1996.
Classification
The Assistant Administrator for Fisheries, NOAA (AA), has
preliminarily determined that this proposed rule is necessary for
management of the Pacific Coast groundfish fishery and that it is
consistent with the Magnuson Act and other applicable law.
NMFS prepared an environmental assessment (EA) for this proposed
rule that discusses the impact on the environment as a result of this
rule. The EA concludes that the biological and physical impacts are
most likely indistinguishable from those of the limited entry trawl
fleet in general for most groundfish species that the Makahs have
agreed to manage under the current limited entry trawl-trip limits. The
EA also asserts that the same conclusion is valid for both the NMFS
proposal and the Makahs' 15,000-mt proposal to implement a Makah
allocation, under the framework proposal, for Pacific whiting.
Conservation concerns arise for both Pacific whiting and bycatch
species such as Pacific ocean perch if the Makahs' initial proposal for
an allocation amounting to 25 percent of the U.S. Pacific whiting
harvest guideline were implemented on a longterm basis. On the basis of
the EA, the AA concluded that there would be no significant impact on
the environment under any of the alternatives. A copy of the EA is
available from NMFS (see ADDRESSES).
[[Page 10307]]
NMFS prepared an initial regulatory flexibility analysis as part of
the regulatory impact review, which describes the impact this proposed
rule would have on small entities, if adopted. The proposed framework
in itself would not have a significant economic impact on a substantial
number of small entities. Of the three allocation options considered
under the framework for 1996, all potentially would affect a
``substantial number'' of small business entities (tribal and non-
tribal catcher vessels that do not process, and shore-based whiting
processors). However, if either the second Makah option (15,000 mt) or
NMFS option (13,000 mt or up to 18,000 mt depending on the harvest
guideline adopted) were implemented, it would not cause ``significant
economic impacts''--these sectors would receive more whiting in 1996
than in 1995, largely due to the expected increase in the harvest
guideline. Only the initial Makah option (25 percent of the U.S.
harvest guideline) could result in a significant economic impact. A
copy of this analysis is available from NMFS (see ADDRESSES).
A formal section 7 consultation under the Endangered Species Act
was concluded for the Pacific Coast Groundfish FMP. In a biological
opinion dated August 28, 1993, and a subsequent reinitiation dated
September 27, 1993, the AA determined that fishing activities conducted
under the FMP and its implementing regulations are not likely to
jeopardize the continued existence of any endangered or threatened
species under the jurisdiction of NMFS.
This proposed rule has been determined by the Office of Management
and Budget to be significant for purposes of Executive Order 12866.
List of Subjects in 50 CFR Part 663
Administrative practice and procedure, Fisheries, Fishing,
Reporting and recordkeeping requirements.
Dated: March 8, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 663 is
proposed to be amended as follows:
PART 663--PACIFIC COAST GROUNDFISH FISHERY
1. The authority citation for part 663 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 663.2 is amended by adding the definition for
``commercial harvest guideline or commercial quota'', in alphabetical
order, to read as follows:
Sec. 663.2 Definitions.
* * * * *
Commercial harvest guideline or commercial quota means the harvest
guideline or quota after subtracting any allocation for the Pacific
Coast treaty Indian tribes or for recreational fisheries. Limited entry
and open access allocations are based on the commercial harvest
guideline or quota.
* * * * *
3. In Sec. 663.7, paragraphs (n) and (o) are revised to read as
follows:
Sec. 663.7 Prohibitions.
* * * * *
(n) Process Pacific whiting in the fishery management area during
times or in areas where at-sea processing is prohibited, unless the
fish were received from a member of a Pacific Coast treaty Indian tribe
fishing under Sec. 663.24.
(o) Take and retain or receive, except as cargo, Pacific whiting on
a vessel in the fishery management area that already possesses
processed Pacific whiting on board, during times or in areas where at-
sea processing is prohibited, unless the fish were received from a
member of a Pacific Coast treaty Indian tribe fishing under
Sec. 663.24.
* * * * *
4. In Sec. 663.23, paragraphs (b)(1) and (b)(4)(i) through
(b)(4)(iv) are revised to read as follows:
Sec. 663.23 Catch restrictions.
* * * * *
(b) * * *
(1) Black rockfish. The trip limit for black rockfish (Sebastes
melanops) for commercial fishing vessels using hook-and-line gear
between the U.S.-Canada border and Cape Alava (48 deg.09'30'' N. lat.),
and between Destruction Island (47 deg.40'00'' N. lat.) and Leadbetter
Point (46 deg.38'10'' N. lat.), is 100 pounds or 30 percent by weight
of all fish on board, whichever is greater, per vessel per fishing
trip.
* * * * *
(4) * * *
(i) The shoreside reserve. When 60 percent of the commercial
harvest guideline for Pacific whiting has been or is projected to be
taken, further at-sea processing of Pacific whiting will be prohibited
pursuant to paragraph (b)(4)(iv) of this section. The remaining 40
percent is reserved for harvest by vessels delivering to shoreside
processors.
(ii) Release of the reserve. That portion of the commercial harvest
guideline that the Regional Director determines will not be used by
shoreside processors by the end of that fishing year shall be made
available for harvest by all fishing vessels, regardless of where they
deliver, on August 15 or as soon as practicable thereafter. NMFS may
again release whiting at a later date if it becomes obvious, after
August 15, that shore-based needs have been substantially over-
estimated, but only after consultation with the Council and only to
ensure full utilization of the resource. Pacific whiting not needed in
the fishery authorized under Sec. 663.24 also may be made available.
(iii) Estimates. Estimates of the amount of Pacific whiting
harvested will be based on actual amounts harvested, projections of
amounts that will be harvested, or a combination of the two. Estimates
of the amount of Pacific whiting that will be used by shoreside
processors by the end of the fishing year will be based on the best
information available to the Regional Director from state catch and
landings data, the survey of domestic processing capacity and intent,
testimony received at Council meetings, and/or other relevant
information.
(iv) Announcements. The Assistant Administrator will announce in
the Federal Register when 60 percent of the commercial harvest
guideline for whiting has been, or is about to be, harvested,
specifying a time after which further at-sea processing of Pacific
whiting in the fishery management area is prohibited. The Assistant
Administrator will publish a document in the Federal Register to
announce any release of the reserve on August 15, or as soon as
practicable thereafter. In order to prevent exceeding the limits or
underutilizing the resource, adjustments may be made effective
immediately by actual notice to fishermen and processors, by phone,
fax, Northwest Region computerized bulletin board (contact 206-526-
6128), letter, press release, and/or U.S. Coast Guard Notice to
Mariners (monitor channel 16 VHF), followed by publication in the
Federal Register, in which instance public comment will be sought for a
reasonable period of time thereafter. If insufficient time exists to
consult with the Council, the Regional Director will inform the Council
in writing of actions taken.
* * * * *
5. Section 663.24 is added to read as follows:
[[Page 10308]]
Sec. 663.24 Pacific Coast treaty Indian fisheries.
(a) Pacific Coast treaty Indian tribes have treaty rights to
harvest groundfish in their usual and accustomed fishing areas in U.S.
waters.
(b) For the purposes of this part, Pacific Coast treaty Indian
tribes means the Hoh, Makah, and Quileute Indian Tribes and the
Quinault Indian Nation.
(c) The Pacific Coast treaty Indian tribes' usual and accustomed
fishing areas within the fishery management area (FMA) are set out
below. Boundaries of a tribe's fishing area may be revised as ordered
by a Federal court.
(1) Makah--That portion of the FMA between 48 deg.02'15'' N. lat.
(Norwegian Memorial) and east of 125 deg.44'00'' W. long.
(2) Quileute--That portion of the FMA between 48 deg.07'36'' N.
lat. (Sand Point) and 47 deg.31'42'' N. lat.(Queets River) and east of
125 deg.44'00'' W. long.
(3) Hoh--That portion of the FMA between 47 deg.54'18'' N. lat.
(Quillayute River) and 47 deg.21'00'' N. lat. (Quinault River) and east
of 125 deg.44'00'' W. long.
(4) Quinault--That portion of the FMA between 47 deg.40'06'' N.
lat. (Destruction Island) and 46 deg.53'18'' N. lat. (Point Chehalis)
and east of 125 deg.44'00'' W. long.
(d) Procedures. The rights referred to in paragraph (a) of this
section will be implemented by the Secretary, after consideration of
the tribal request, the recommendation of the Council, and the comments
of the public. The rights will be implemented either through an
allocation of fish that will be managed by the tribes, or through
regulations in this section that will apply specifically to the tribal
fisheries. An allocation or a regulation specific to the tribes shall
be initiated by a written request from a Pacific Coast treaty Indian
tribe to the Regional Director, prior to the first of the Council's two
annual groundfish meetings. The Secretary generally will announce the
annual tribal allocation at the same time as the annual specifications
developed under section II.H. of the Appendix to this part.
(e) Identification. A valid treaty Indian identification card
issued pursuant to 25 CFR part 249, subpart A, is prima facie evidence
that the holder is a member of the Pacific Coast treaty Indian tribe
named on the card.
(f) A limited entry permit under subpart C of this section is not
required for participation in a tribal fishery described in paragraph
(d) of this section.
(g) Fishing under this section by a member of a Pacific Coast
treaty Indian tribe within their usual and accustomed fishing area is
not subject to the provisions of other sections of this part.
(h) Any member of a Pacific Coast treaty Indian tribe must comply
with this section, and with any applicable tribal law and regulation,
when participating in a tribal groundfish fishery described in
paragraph (d) of this section.
(i) Fishing by a member of a Pacific Coast treaty Indian tribe
outside the applicable Indian tribe's usual and accustomed fishing
area, or for a species of groundfish not covered by an allocation or
regulation under this section, is subject to the regulations in the
other sections of this part.
(j) Black rockfish. Harvest guidelines for commercial harvests of
black rockfish by members of the Pacific Coast Indian tribes using hook
and line gear will be established annually for the areas between the
U.S.-Canada border and Cape Alava (48 deg.09'30'' N. lat.) and between
Destruction Island (47 deg.40'00'' N. lat.) and Leadbetter Point
(46 deg.38'10'' N. lat.), in accordance with the procedures for
implementing annual specifications in section II.H of the Appendix to
this part. Pacific Coast treaty Indians fishing for black rockfish in
these areas under these harvest guidelines are subject to the
provisions in this section, and not to the restrictions in other
sections of this part.
(k) Groundfish without a tribal allocation. Makah tribal members
may use midwater trawl gear to take and retain groundfish for which
there is no tribal allocation, and will be subject to the trip landing
and frequency and size limits applicable to the limited entry fishery.
6. The Appendix to this part is amended by revising the first
paragraph in section II.H. to read as follows:
Appendix to Part 663--Groundfish Management Procedures
* * * * *
II. * * *
H. * * *
Annually, the Council will develop recommendations for
specification of ABCs, identification of species or species groups for
management by numerical harvest guidelines and quotas, specification of
the numerical harvest guidelines and quotas, and apportionments to DAP,
JVP, DAH, TALFF, and the reserve over the span of two Council meetings.
The Council also will develop recommendations for the specification of
allocations for Pacific Coast treaty Indian tribes as described at
Sec. 663.24.
* * * * *
[FR Doc. 96-6054 Filed 3-8-96; 3:49 pm]
BILLING CODE 3510-22-W
