[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