[Federal Register Volume 59, Number 178 (Thursday, September 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22792]


[[Page Unknown]]

[Federal Register: September 15, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 371

[Docket No. 940954-4254; I.D. 090994B]

 

Pacific Salmon Treaty; Preemption

agency: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

action: Final Rule; Preemption and closure.

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summary: NOAA closes Puget Sound Salmon Management and Catch Reporting 
Areas 7 and 7A to commercial fishing for sockeye salmon with net gear 
for the remainder of 1994. This action is taken to implement a 
determination by the Under Secretary for Oceans and Atmosphere, NOAA 
(Under Secretary) to supersede a regulation of the Lummi Indian Tribe 
(Tribe) which would place the United States in jeopardy of not 
fulfilling its international obligations under the Treaty between the 
Government of the United States of America and the Government of Canada 
Concerning Pacific Salmon, signed at Ottawa, January 28, 1985 (Treaty). 
This action is intended to protect the integrity of the management 
system established by the Treaty and fulfill international obligations 
of the United States under the Treaty.

dates: The closure is effective from 0001 hours, local time, September 
10, 1994, through 2400 hours, local time, December 31, 1994. Comments 
must be received by September 30, 1994.

addresses: Send comments to William Stelle, Jr., Director, Northwest 
Region, National Marine Fisheries Service, 7600 Sand Point Way N.E., 
Seattle, WA 98115.

for further information contact: William L. Robinson at 206-526-6140.

SUPPLEMENTARY INFORMATION:

Definitions

    For purposes of this action:
    Area 7 means Puget Sound Salmon Management and Catch Reporting Area 
7, which includes those waters of Puget Sound southerly of a line 
projected true west from the Sandy Point light; northerly of a line 
projected from the Trial Island light, to vessel traffic-lane buoy R, 
to the Smith Island light, to the most northeasterly of the Lawson Reef 
lighted buoys (RB 1, Qk F1 Bell), to Northwest Island, to the 
Initiative 77 marker on Fidalgo Island; and westerly of a line 
projected from Sandy Point to Point Migley, thence along the eastern 
shoreline of Lummi Island to Carter Point, thence to the most northerly 
tip of Vendovi Island, thence to Clark Point on Guemes Island following 
the shoreline to Southeast Point on Guemes Island, thence to March 
Point on Fidalgo Island, excluding those waters of East Sound northerly 
of a line projected due west from Rosario Point on Orcas Island.
    Area 7A means Puget Sound Salmon Management and Catch Reporting 
Area 7A, which includes those waters of Puget Sound northerly of a line 
projected true west from the Sandy Point light.
    Commercial fishing means fishing for the purpose of sale or barter 
of the catch.
    Net gear means gill nets (including set nets), purse seines, reef 
nets, and beach seines.

Background

    Section 6 of the Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3635, 
authorizes the Under Secretary to supersede any treaty Indian tribal 
regulation determined by the Secretary to place the United States in 
jeopardy of not fulfilling its international obligations under the 
Treaty. Article III, paragraph 1 of the Treaty states that ``With 
respect to stocks subject to this Treaty, each Party shall conduct its 
fisheries and its salmon enhancement programs so as to * * * prevent 
overfishing and provide for optimum production * * *''. The risk of 
overfishing of a stock increases when the entire total allowable catch 
(TAC) is taken, and any remaining harvest would reduce the spawning 
escapement below the target level. Fishing into the spawning escapement 
also increases the risk of not achieving optimum production.
    Article IV, paragraph 3 of the Treaty provides that the country of 
origin shall submit preliminary information for the ensuing year to the 
other party to the Treaty and to the Pacific Salmon Commission 
(commission), including the spawning escapement required. Based on a 
total run-size estimate of 17.53 million sockeye, and a spawning 
escapement goal provided to U.S. domestic managers by Canada of 5.65 
million sockeye, the TAC of Fraser River sockeye salmon in 1994 for 
both countries is 11.88 million fish. Total commercial and non-
commercial catches accounted for to date include 9.796 million sockeye 
by Canada and 2.043 million sockeye by the United States, for a total 
harvest of 11.839 million. Thus, there would appear to be 41,000 
sockeye remaining for harvest between both countries.
    However, the Fraser River sockeye run is divided into four major 
components, each with its own spawning escapement goal and TAC. Three 
of the stock components have already migrated through the Fraser River 
harvest areas into the Fraser River and are no longer available for 
harvest. Only the late-run stock remains in the fishing areas. The 
Commission staff estimates the size of the late run to be 9.3 million 
fish. Canada has established a net (spawning) escapement goal of 3.26 
million late-run sockeye. The total commercial and non-commercial catch 
of late-run sockeye by both countries is 6.314 million; 0.102 million 
have migrated up the river and 2.884 million are estimated by the 
Commission's technical staff to be holding off the river mouth, waiting 
to migrate up the river to the spawning grounds. Assuming that none of 
the late-run sockeye estimated to be remaining are harvested, the total 
late-run sockeye spawning escapement would be only 2.986 million fish, 
or approximately 0.247 million fewer than the spawning escapement goal 
of 3.26 million fish. Consequently, no Fraser River sockeye remain 
available for harvest.
    Based on this information, Canadian commercial fisheries were 
terminated for the balance of the season on September 1, 1994. On 
September 2, 1994, U.S. domestic fishery managers agreed to terminate 
both non-treaty Indian and treaty Indian commercial fisheries for 
sockeye in Washington State waters after a treaty Indian fishery in 
Area 7A was completed on September 4, 1994.
    Regulation number 94-20 of the Tribe, adopted September 8, 1994, 
opens a commercial salmon fishery that would target stocks of Canadian 
origin in Area 7A, effective from 5 a.m., September 10, 1994, through 8 
p.m., September 13, 1994. This fishery would harvest late-run Fraser 
River sockeye salmon that have been identified as being necessary for 
spawning escapement in order to achieve optimum production for late-run 
sockeye from the Fraser River. Considerable uncertainty exists 
regarding the amount of sockeye salmon that might be taken by the Lummi 
fishery. Late-run sockeye are milling in the area off the mouth of the 
Fraser River and catches could be highly variable. Based upon the 
variability in catches observed earlier this season, catches could 
range from very low to up to 100,000 fish. Thus, the harvest of any 
additional sockeye salmon by the United States during the 1994 season, 
especially if catches were large, would increase the risk of 
overfishing and increase the risk of not achieving optimum production, 
as referred to in Article III, paragraph 1(a) of the Treaty.
    By letter dated September 9, 1994, the U.S. Department of State 
informed the Under Secretary that the Tribe's regulation places the 
United States in jeopardy of not fulfilling its international 
obligations under Article III, paragraph 1(a) of the Treaty. Also on 
September 9, 1994, the Under Secretary, pursuant to 16 U.S.C. 3635, 
informed the Tribe that its regulation is inconsistent with the Treaty 
and places the United States in jeopardy of not fulfilling its 
international obligations, requested the Tribe to rescind the 
regulation, and informed the Tribe of his intent to promulgate Federal 
regulations if remedial action was not taken. The Tribe did not rescind 
its regulation.

Secretarial Action

    The Under Secretary, on behalf of the Secretary of Commerce and 
pursuant to 16 U.S.C. 3636(a), promulgates this Federal regulation to 
supersede regulation number 94-20 of the Tribe. It is unlawful for any 
person to engage in commercial fishing for sockeye salmon with net 
gear, or to take and retain, land, or possess sockeye salmon taken in 
the course of commercial fishing with net gear, in Area 7 or Area 7A, 
from 0001 hours, local time, September 10, 1994, through 2400 hours, 
local time, December 31, 1994.

Additional Information

    Areas 7 and 7A are not areas where terminal fisheries are 
conducted; terminal fishing areas of the Tribe are located outside 
Areas 7 and 7A, and are not affected by this regulation.
    Additional notice of this regulation is being published in local 
newspapers in the major fishing ports affected, and is available 
through the following toll-free (within area code 206) telephone 
hotlines:
    All-citizen fisheries: 1-800-562-6513;
    Treaty Indian fisheries: 1-800-562-6142;
    Washington Department of Fisheries: 1-800-562-5672.

Classification

    This rule is necessary and appropriate to carry out obligations of 
the United States under the Treaty, and as such, involves a foreign 
affairs function. Therefore, pursuant to 16 U.S.C. 3636(a), it is not 
subject to the ordinary rulemaking requirements of the Administrative 
Procedure Act, 5 U.S.C. 553 et seq.
    This rule is necessary to respond to an emergency situation and is 
consistent with the Treaty, the Pacific Salmon Treaty Act of 1985 (16 
U.S.C. 3631-3644), and other applicable law, including U.S. obligations 
to Canada and to U.S. treaty Indians. The Secretary of the Interior, 
the Secretary of Transportation, and the Pacific Fishery Management 
Council have been consulted.
    For the purposes of E.O. 12866, this action is being issued 
pursuant to the emergency procedures provided in section 6(a)(3)(B). 
NOAA has notified the Office of Management and Budget.

    Dated: September 9, 1994.
D. James Baker,
Under Secretary for Oceans and Atmosphere, National Oceanic and 
Atmospheric Administration.
[FR Doc. 94-22792 Filed 9-9-94; 4:32 pm]
BILLING CODE 3510-22-M