[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Rules and Regulations]
[Pages 28786-28796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14141]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 663

[Docket No. 960304057-6151-02; I.D. 020596A]
RIN 0648-AH84


Pacific Coast Groundfish Fishery; Framework for Treaty Tribe 
Harvest of Pacific Groundfish and 1996 Makah Whiting Allocation

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

ACTION: Final rule.

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SUMMARY: NMFS is establishing a framework to implement the Washington 
coastal treaty Indian tribes' rights to harvest Pacific groundfish. 
NMFS also announces the allocation of 15,000 metric tons (mt) of 
Pacific whiting to the Makah Indian Tribe (Makah) for 1996 only, under 
the provisions of the regulatory framework.

EFFECTIVE DATE: May 31, 1996.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) may be 
obtained from the Director, Northwest Region, NMFS, 7600 Sand Point Way 
NE., BIN C15700, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140.

SUPPLEMENTARY INFORMATION: NMFS is issuing this rule under the 
authority of the Pacific Coast Groundfish Fishery Management Plan (FMP) 
and the Magnuson Fishery Conservation and Management Act (Magnuson 
Act). It amends the FMP's implementing regulations to establish a clear 
procedure to accommodate the Washington coastal treaty Indian tribes' 
rights to harvest Pacific groundfish. At the same time, NMFS is 
modifying the groundfish regulations to consolidate regulations on 
treaty Indian fishing into one section and to provide for the treaty 
trawl harvest of midwater groundfish species. Under the provisions of 
this rule, NMFS announces the allocation of 15,000 mt of Pacific 
whiting to the Makah for 1996. For purposes of this rule, Washington 
coastal treaty Indian tribes means the Hoh, Makah, and Quileute Indian 
Tribes and the Quinault Indian Nation.
    This rule is implemented under authority of section 305(d) of the 
Magnuson Act, which gives NMFS,

[[Page 28787]]

acting on behalf of the Secretary of Commerce (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 rule, NMFS will ensure that the Pacific coast 
groundfish FMP is implemented in a manner consistent with treaty rights 
of the four Washington coastal treaty tribes to fish in their ``usual 
and accustomed grounds and stations'' in common with non-tribal 
citizens. United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 
1974).
    NMFS published a proposed rule at (61 FR 10303, March 13, 1996), 
requesting comments through April 12, 1996. NMFS received 17 comments 
on the proposed rule, which are responded to below. The background and 
rationale for this rule appear in the proposed rule and the EA/RIR/IRFA 
prepared for this action (see ADDRESSES).

Description of the Rule

    Under the framework established by this rule, NMFS will be able to 
accommodate the rights of the treaty tribes to fish for groundfish in 
their ocean fishing grounds by setting aside appropriate amounts of 
fish through the FMP's framework process for setting annual harvest 
specifications or by means of specific regulations. The framework 
process will be initiated by a request to NMFS from one or more 
Washington coastal treaty Indian tribes prior to the first of the two 
annual groundfish meetings of the Pacific Fishery Management Council 
(Council). NMFS will consider the tribal requests, recommendations from 
the Council, and comments of the public, and will determine the amount 
of the set-aside for each species and/or appropriate regulatory 
language. NMFS will generally 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 
will be managed by the tribes under their regulations.
    This rule also describes the physical boundaries of the usual and 
accustomed fishing grounds (U&A) for the Washington Coastal treaty 
Indian tribes. These areas are the same as those set out in NMFS 
regulations for salmon since 1987 and for Pacific halibut since 1986. 
The boundaries may be changed by future decisions of a Federal court.
    Participation in a tribal fishery for Pacific Coast groundfish 
authorized under these regulations will not require a Federal limited 
entry permit. However, fishing by members of a Washington coastal 
treaty Indian tribe outside the tribe's U&A grounds or for a species 
not covered by a set-aside or regulation under this rule will be 
subject to the same regulations as other, non-treaty persons 
participating in the fishery.
    Harvests from tribal fisheries under this regulation will not be 
subject to, or alter rules concerning, harvesting or processing 
apportionments in the non-treaty fisheries; the whiting allocation 
regulations at Sec. 663.23(b)(4) are modified to clarify this. This 
rule also allows release to the non-treaty fishery of whiting set aside 
for the tribes that the tribes will not use.
    This rule also re-codifies regulations governing tribal harvest of 
black rockfish into Sec. 663.23 in order to consolidate all tribal 
regulations into one section. In addition, the harvest guideline is 
changed from a harvest guideline for all rockfish to one for black 
rockfish for the reason explained in the proposed rule. When the 
current tribal rockfish regulation was adopted, the only tribal fishery 
that harvested rockfish was the hook-and-line fishery. This rule 
modifies the current regulation to clarify that the harvest guideline 
only applies to the hook-and-line fishery. 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.

Allocation of Pacific Whiting to the Makah

    In June of 1995, the Makah informed NMFS and the Council that the 
Tribe intends to exercise its treaty rights to harvest Pacific whiting, 
Merluccius productus. At the August 1995 Council meeting, the Makah 
requested that 25,000 mt of whiting be set aside from the 1996 U.S. 
harvest guideline for exclusive harvest by the Makah. The Council voted 
7-4 to recommend that NMFS not recognize that the Washington coastal 
treaty tribes have treaty rights to Pacific whiting, and not set aside 
any whiting for harvest by the Makah in 1996.
    NMFS cannot accept the Council's recommendation because it is 
contrary to treaty fishing rights law as construed by the Federal 
courts. Consequently, NMFS published a proposed rule to accommodate the 
tribal right to harvest groundfish, and sought public comment on the 
amount of whiting that should be set aside for exclusive harvest by the 
Makah in 1996.
    NMFS and the Makah continue to disagree on the appropriate 
quantification of the Makah treaty right to Pacific whiting. The basis 
for this disagreement is explained in the proposed rule at 61 FR 10305 
(March 13, 1996).
    At the October 1995 Council meeting, the Makah proposed a 
quantification of their treaty entitlement that would have given the 
Makah 25 percent of the U.S. harvest guideline. Based on a 1996 U.S. 
harvest guideline of 212,000 mt, the Makah proposal would have resulted 
in an allocation to the Makah of 53,000 mt in 1996. NMFS has proposed a 
biomass-based quantification of the Makah treaty entitlement that is 
linked to the Makah U&A and adjusted according to the conservation 
necessity principle. The NMFS proposal would have allocated 6.5 percent 
of the U.S. harvest guideline to the Makah in 1996, or 13,800 mt. 
During discussions between NMFS and the Makah, the Makah advanced a 
compromise 1-year interim allocation of 15,000 mt. The proposed 15,000-
mt allocation did not reflect either the NMFS or the Makah view of the 
amount of whiting to which the Makah are entitled under the Treaty. It 
represented a compromise proposal by the Makah that reflected the 
minimum amount of whiting necessary to initiate a fishery in 1996 by 
the Tribe.
    In view of continuing differences between the Makah and NMFS 
regarding the appropriate quantification of the Makah treaty 
entitlement, and in recognition of the unresolved legal and technical 
difficulties in quantifying the treaty right to Pacific whiting, NMFS 
has decided to implement the proposed compromise and allocate 15,000 mt 
to the Makah for 1996 only. Based on the U.S. harvest guideline of 
212,000 mt, the allocation of 15,000 mt to the Makah is slightly 
greater than the 13,800 mt that would have been allocated under the 
NMFS proposal and much less than the amount originally proposed by the 
Makah. NMFS believes that the 1-year compromise proposal gives NMFS and 
the Makah additional time to determine an appropriate quantification of 
the Makah treaty entitlement. To that end, the Makah have initiated a 
subproceeding in United States v. Washington (subproceeding 96-2) 
intended to resolve whether the Makah have a treaty right to whiting 
and the quantification of that right. The 15,000-mt compromise applies 
to the 1996 fishing year only and is not intended to set a precedent 
regarding either quantification of the Makah's treaty entitlement or 
future allocations.
    The Makah also plan to harvest midwater species other than whiting, 
using trawl gear. Rather than attempt to quantify its treaty 
entitlement to these species at this early point in the process,

[[Page 28788]]

the Tribe has agreed that its vessels will trawl for these other 
midwater species in conformance with trip limits established for the 
limited entry fishery. NMFS agrees that this is a reasonable 
accommodation of the treaty right, particularly in view of the data 
limitations and the uncertainty in quantifying treaty rights.

Response to Comments

    NMFS received 17 comments on the proposed rule from: The States of 
Washington and Oregon; three Washington coastal treaty tribes; and 
members of the non-Indian fishing and processing community who 
currently fully utilize the U.S. harvest guideline. Many comments 
addressed two major issues: (1) Whether the Washington coastal treaty 
tribes have a treaty entitlement to Pacific groundfish, particularly 
Pacific whiting; and (2) the appropriate quantification of the treaty 
right. NMFS received other comments regarding the impacts on non-Indian 
fishers, processors, coastal communities, the whiting resource, and 
bycatch, particularly chinook salmon listed under the Endangered 
Species Act (ESA); NMFS' description of tribal U&A the implementation 
process; and the framework.

Treaty Entitlement

    Many commenters asserted that the tribes do not have a treaty right 
to whiting, because they did not harvest whiting at the time the 
Stevens treaties were signed. NMFS disagrees with this statement. The 
treaties themselves refer to the right of taking fish, without any 
species limitation. As explained in the proposed rule, in the shellfish 
subproceeding (89-3) in United States v. Washington, 873 F. Supp. 1422 
(W.D. Wash., 1994) (appeals pending), the court found that the right to 
take fish that was reserved in the treaties must be read to cover 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 * * * Because the ``right of taking fish'' must be read as a 
reservation of the Indians' pre-existing rights, and because the 
right to take any species, without limit, pre-existed the Stevens 
Treaties, the Court must read the ``right of taking fish'' without 
any species limitation. [emphasis in original] Id. at 1430

    Commenters argue that this case is on appeal and dealt with 
shellfish, not groundfish; therefore it is inappropriate for this 
ruling to be applied to whiting. The decision has not been stayed 
pending appeal. As such, NMFS has no choice but to apply the law 
consistent with interpretations by the District Court.
    In addition, the Makah have submitted evidence supporting the 
conclusion that the Makah did harvest whiting at treaty time. Dr. 
Barbara Lane, an anthropologist and expert witness in United States v. 
Washington, states that ``a lack of documentation in the published 
literature is of no help in assessing whether or not the Makah fished 
M. productus at treaty times.'' She goes on to say:

    The best that can be done is to interpolate from archeological 
evidence, the available ethnographic record, linguistic knowledge, 
oral history, and ethnology. Based upon these sources, which 
comprise the best available evidence, it is my opinion that if M. 
productus was accessible to Makah fishermen at treaty time, this 
species would have been utilized.

Letter from Barbara Lane to Marc D. Slonim (legal counsel for the 
Makah tribe), February 29, 1996.

    Dr. Gary Wessen (Wessen & Associates, Archeological Services), in 
comments submitted by the Makah, reviewed some of the available 
archeological evidence and concluded:

    Use of this fish [M. productus] probably extends over much of 
the region and has been occurring for a considerable period of time. 
Within the context of this regional pattern, the case for Makah use 
of hake/whiting is quite good. At least one site in Makah territory 
contains the bones of this fish, as do other sites which represent 
close relatives of the Makah.

Letter from Gary C. Wessen, Ph.D. to Marc D. Slonim, November 24, 
1995.

    Several commenters argued that the Makah must follow the procedure 
set out by Judge Boldt in one of his early decisions at 459 F. Supp. 
1020, 1037-38, where the court said prior to exercising off-reservation 
fishing rights to non-anadromous fish and shellfish, a tribe shall 
present prima facie evidence of such right, ``pending final 
determination of tribal treaty-right entitlement to non-anadromous fish 
and shellfish.'' NMFS believes that this does not apply to the whiting 
fishery. First, as explained above, the United States v. Washington 
court has already ruled that tribes have treaty rights to all fish 
available in their U&A thus the treaty-right entitlement has been 
determined. Second, in the halibut subproceeding in United States v. 
Washington, when Judge Rothstein determined that the tribes have treaty 
rights to halibut, she did not order NMFS to start accommodating the 
treaty right because she had previously judicially determined they had 
a right. Rather, she found that the Makah treaty right had been 
violated in past regulatory schemes. The necessary implication of this 
finding is that the treaty right should have been accommodated prior to 
her judicial determination. Makah Indian Tribe v. Brown, No. C85-1606R, 
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, Dec. 29, 1993). Third, the judicial procedure was set up in 
the early days of the treaty fishing rights litigation, in relation to 
fishing within the jurisdiction of the State of Washington (which did 
not recognize the fishing rights in question) in order to ensure an 
orderly implementation of new fisheries. The whiting fishery is 
primarily under the jurisdiction of NMFS, which recognizes the treaty 
right and which is working with the tribe to implement an orderly 
fishery. Thus, the United States v. Washington procedure is not 
required for Federally regulated fisheries to the extent that there is 
no disagreement between the tribes and the Federal government. The 
administrative procedures set up by this rule should ensure the orderly 
implementation of new treaty fisheries without the need to resort to 
the courts except in unusual circumstances.
    Four commenters agreed with NMFS that the Makah have a treaty right 
to harvest whiting.

Moderate Living

    One commenter argued that the total treaty right to a ``moderate 
living'' has been satisfied; therefore no extension of the tribal 
fishery is authorized. The commenter is referring to what has become 
known as the ``Moderate Living Standard'', which was set out by the 
Supreme Court as follows:

    It bears repeating, however, that the 50% figure imposes a 
maximum but not a minimum allocation. As in Arizona v. California 
and its predecessor cases, the central principle here must be that 
the Indian treaty rights to a natural resource that once was 
thoroughly and exclusively exploited by the Indians secures so much 
as, but no more than, is necessary to provide the Indians with a 
livelihood--that is to say, a moderate living. Accordingly, while 
the maximum possible allocation to the Indians is fixed at 50 
percent [footnote omitted], the minimum is not; the latter will, 
upon proper submissions to the District Court, be modified in 
response to changing circumstances. If, for example, a tribe should 
dwindle to just a few members, or if it should find other sources of 
support that lead it to abandon its fisheries, a 45 percent or 50 
percent allocation of an entire run that passes through its 
customary fishing grounds would be manifestly inappropriate because 
the livelihood of the tribe under those

[[Page 28789]]

circumstances could not reasonably require an allotment of a large 
number of fish.

State of Washington et al. v. Washington State Commercial Passenger 
Fishing Vessel Association, et al. 443 U.S. 658 at 686-687.

    The commenter refers to an affidavit of Professor Robert Thomas, 
Associate Professor of Economics, University of Washington, that 
compares the income of the Makah Tribe and its households with three 
definitions of the poverty level. Professor Thomas concludes that the 
average Makah household lives above the poverty level, and, therefore, 
the Makah Tribe enjoys a livelihood, or a moderate living. A similar 
analysis, also prepared by Dr. Thomas, was submitted to, and rejected 
by, the court in the shellfish subproceeding.

    The Court finds that no persuasive evidence has been presented 
to the Court by the State and the intervenors showing that a 
substantial change in circumstances has occurred, [fn omitted] so 
that the Tribes could maintain a moderate living without the 
exercise of their fishing rights, or that the Tribes have 
voluntarily abandoned their fisheries. Therefore, the Court declines 
to apply the Moderate Living Doctrine to these facts.

873 F.Supp at 1445.

    In the shellfish case, the tribes submitted a report by Dr. Phil 
Meyer, entitled, ``Analysis of the Material Circumstances of 17 
Washington Tribes'', which included information on the Makah tribe. The 
court accepted Dr. Meyer's analysis as more appropriate than Dr. 
Thomas's, and declined to apply the Moderate Living Doctrine to reduce 
the tribes share of fish. Id. at 1446.
    The Makah, in their comments, submitted information showing that 
the Makah are a geographically isolated community, which lacks 
alternative economic opportunities. Unemployment is nearly twice that 
of Clallam County (where the Makah reservation is located) and a 1988 
survey of 102 Makah households showed that 63 percent considered 
fishing to be the main occupation of their household. The Makah 
commercial salmon catch has declined by approximately 87 percent for 
chinook and coho salmon and 20 percent for chum salmon over the last 5 
years. The Makah's gross revenues from all salmon fisheries have 
declined by approximately 72 percent over the last 5 years. The Makah 
also referred to the ruling in the shellfish subproceeding explained 
above.
    In conclusion, NMFS does not believe there is sufficient evidence 
that the Moderate Living Doctrine requires reduction of the tribal 
share of the resource. In any event, that issue must be presented to 
the court in United States v. Washington, subproceeding 96-2 for 
determination before the treaty share is reduced by application of the 
Moderate Living Doctrine.

Equitable Considerations

    One commenter argued that Judge Rafeedie's consideration of 
equitable factors in the shellfish subproceeding should be taken into 
account here. The Stevens treaties guaranteed the tribes the right to 
take shellfish, except from beds that have been ``staked or 
cultivated.'' In the shellfish subproceeding Judge Rafeedie adopted a 
broad definition of ``cultivated'' bed with regard to beds found on 
private property. His ruling only applies to the activities of a 
private property owner in making his tidelands more productive of 
shellfish; in that case the Judge ruled that the tribes cannot reap the 
fruits of the grower's labors in farming a particular piece of private 
property. In the case of whiting, there are no private property rights 
involved. Whiting is a common property resource, just like salmon and 
halibut. While the tribes have not harvested whiting in recent years, 
that does not defeat their treaty right. Judge Rafeedie in the 
shellfish decision explained

    The Supreme Court and the Ninth Circuit have consistently held 
that time-related defenses such as latches, waiver, estoppel, and 
adverse possession are not available to defeat Indian treaty rights. 
[citations omitted]

873 F. Supp. 1422 at 1446.

Definition of Tribal U&A

    NMFS received comments on the tribes' U&A from the States of 
Washington and Oregon, from three coastal tribes, and from two 
individuals.
    One commenter argued the Makah U&A could not extend beyond 3 miles 
(4.83 km), the limit of the territorial sea at the time of the 
treaties. The Federal Court, however, specifically found the Makah U&A 
extended 40 miles (64.37 km) offshore to the limits of United States 
maritime jurisdiction. See United States v. Washington, 626 F. Supp. 
1466, 1467 (W.D. Wash., 1982), aff'd 730 F.2d 1314 (9th Cir. 1984).
    Under this rule, NMFS recognizes the same U&A areas that have been 
implemented in Federal salmon and halibut regulations for a number of 
years. The States and the Quileute tribe point out that the western 
boundary has only been adjudicated for the Makah tribe. NMFS agrees. 
NMFS, however, in establishing ocean management areas, has taken the 
adjudicated western boundary for the Makah tribe, and extended it south 
as the western boundary for the other three ocean treaty tribes. NMFS 
believes this is a reasonable accommodation of the tribal fishing 
rights, absent more specific guidance from a court. NMFS regulations, 
including this regulation, contain the notation that the boundaries of 
the U&A may be revised by order of the court.
    The State of Oregon points out that the western boundaries for the 
Hoh, Quileute, and Quinault have not been specifically adjudicated. The 
State goes on to argue that because Judge Boldt, in another portion of 
his opinion, states that the case is limited to adjacent offshore 
waters that are within the jurisdiction of the State of Washington, the 
U&A cannot extend more than 3 miles (4.83 km) from shore. NMFS 
disagrees with this interpretation because, as explained above, the 
court has specifically found the Makah U&A extends offshore 40 miles. 
Thus, the State's reading of Judge Boldt's language is too 
constraining.
    The Quinault Nation points out the northern and southern boundaries 
of the Quileute Tribe's U&A described in the proposed rule (and 
finalized in this rule) are currently at issue in subproceeding No. 96-
1 in United States v. Washington. The tribe does not object to the 
description of the U&A contained in this regulation as long as it is 
without prejudice to proceedings in United States v. Washington. NMFS 
agrees that this rule is without prejudice to the court proceedings. As 
stated above, NMFS will modify the boundaries in the regulation 
consistent with orders of the Federal Court. NMFS has not taken a 
position on the Quileute U&A boundaries in the pending subproceeding.
    The Makah Tribe supports the rule, and does not object to the 
description of its U&A.
    Another commenter argued that the boundaries of the U&A for salmon 
and halibut are not necessarily relevant to the Pacific whiting 
resource. NMFS disagrees. Judge Rafeedie, in the shellfish 
subproceeding (83-6) in United States v. Washington found ``that, as a 
matter of treaty interpretation, the Tribes' usual and accustomed 
grounds and stations cannot vary with the species of fish.'' 873 F. 
Supp. 1422 at 1431 (W.D. Wash., 1994)(appeals pending). The commenter 
also doubted whether the tribes usually and customarily utilized their 
canoes in fishing operations 20 miles (32.19 km) and beyond the 
shorelines. The explanation of the western boundaries is set out above.

Magnuson Act

    Two commenters argued that NMFS does not have authority under 
section

[[Page 28790]]

305(d) of the Magnuson Act to promulgate this rule. NMFS disagrees. The 
Magnuson Act at section 305(d) gives the Secretary general authority to 
carry out any fishery management plan in accordance with the provisions 
of the Magnuson Act. Section 303(d) requires that any management 
measure be consistent with other applicable law. One of the laws 
applicable to the groundfish FMP is the treaty right to groundfish. 
Fishery management plans and implementing regulations must be 
consistent with Indian treaty rights. Washington State Charterboat 
Ass'n v. Baldrige, 702 F.2d 820 at 823 (9th Cir. 1983); Hoh Indian 
Tribe v. Baldrige, 522 F.Supp. 683 at 685 (W.D. Wash., 1981); 
Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1439 (9th 
Cir. 1990). The FMP itself acknowledges treaty rights, and 
accommodations for treaty rights to sablefish and black rockfish have 
been made under existing regulations. However, the FMP's implementing 
regulations (codified at 50 CFR part 663) currently lack an explicit 
provision requiring accommodation of treaty rights and a specific 
process for doing so. NMFS is remedying that deficiency through this 
regulation.
    Two commenters stated that if there were a treaty right, the 
appropriate procedure for implementing the tribal allocation would be a 
Secretarial amendment to the FMP. This procedure is available to the 
Secretary; however, implementing the tribal groundfish rights does not 
require NMFS to amend the FMP. As explained above, the framework 
established by the regulation is consistent with the plan, and NMFS has 
adequate implementing authority under the Magnuson Act.
    One commenter argued that the plan amendment process should have 
been utilized, because numerous applicable laws that govern the process 
were not complied with here. NMFS disagrees. The other procedural laws 
to which NMFS assumes the commenter was referring have been complied 
with, as explained below. The same suite of laws applies to a 
regulation whether it initially implements a plan or amendment, or 
whether it is a regulatory amendment to regulations implementing an 
already approved plan; the scope and substance of the rule controls 
what laws apply.
    One commenter argued that to make an Indian treaty allocation, 
Indian treaty fishing rights had to be included in the FMP. The 
commenter noted that the FMP does not include provision to allocate 
whiting under Indian Treaties, and yet the FMP was adopted and approved 
as consistent with the Magnuson Act years ago. In fact, the FMP 
addresses treaty fishing rights, although not as concretely and 
explicitly as this rule. Section 11.7.6 of the FMP states that some 
tribes have a treaty right to fish in areas covered by the FMP, that at 
the time the FMP was prepared, the Makah sablefish fishery was the only 
active tribal groundfish fishery known by the Council, and that the FMP 
may need to be amended in the future to address other fisheries that 
may develop. In section 14.1.5 the FMP acknowledges that the treaty 
Indian fisheries are not covered by the limited entry program. The FMP 
acknowledges treaty fishing rights. The FMP also indicates that it may 
need to be amended in the future, but does not require such an 
amendment. The rights to both sablefish and black rockfish have been 
accommodated under this FMP. As the law has developed in recent years 
(see above), it is appropriate to further implement this FMP consistent 
with the developing law regarding treaty rights.
    Many commenters argued that this rule is inconsistent with National 
Standard 4, which requires that conservation and management measures be 
fair and equitable, reasonably calculated to promote conservation; and 
carried out in such manner that no particular individual, corporation 
or other entity acquires an excessive share of such privileges. This 
framework and allocation implements a treaty fishing right, which is 
not the same as other discretionary allocations the Council and NMFS 
might adopt. NMFS has determined this rule is consistent with National 
Standard 4, and is required by the treaties with the Northwest tribes, 
which are ``other applicable law'' with which management measures must 
be consistent.
    Other commenters argued that this rule violates other national 
standards, because it is not based on the best scientific evidence 
available, however, they did not submit information NMFS had not 
considered. NMFS has gathered the best scientific information known to 
the agency.
    This allocation does not discriminate between residents of 
different states. While the affected treaty tribes are located in the 
State of Washington, the criteria of the allocation is not state 
residence, it is treaty tribe status. This is no different than the 
longstanding allocation of salmon to the treaty tribes.
    One commenter claimed that allocating Pacific groundfish to the 
treaty tribes contravenes the Council and the fishing industry's 
attempts to reduce overcapitalization in the groundfish industry. NMFS 
agrees that the new tribal fishers will increase the groundfish fleet, 
especially for whiting. However, as described above, this framework and 
allocation implements a treaty fishing right, which is not the same as 
other discretionary allocations the Council and NMFS might adopt. NMFS 
has determined that this rule is required by the treaties with the 
Northwest tribes, which are ``other applicable law'' with which other 
management measures must be consistent.
    Commenters argued allocating groundfish to treaty tribes in their 
U&A is not managing groundfish as a unit throughout its range, and is 
in violation of National Standard 3. It does manage throughout its 
range because it takes all groundfish into account. Mere allocation in 
relationship to a specific area does not violate National Standard 3. 
In addition, National Standard 3 says a stock of fish should be managed 
throughout its range ``to the extent practicable.'' Since this rule 
implements a treaty right, which must be accommodated, that right would 
have to be considered in determining whether a management measure is 
practicable.
    One commenter argued that this rule has economic allocation as its 
purpose, in violation of National Standard 5. National Standard 5 only 
prohibits management measures that have economic allocation as their 
sole purpose. The purpose of this regulation, however, is 
implementation of treaty fishing rights.
    One commenter argued that the Makah petition for whiting did not 
comply with requirements to formally commence Administrative Procedure 
Act (APA) rulemaking. While this rule is not in response to a formal 
APA petition, it meets the requirements for rulemaking set forth in 5 
U.S.C. 553.
    Some commenters argued that because the Council voted to deny the 
Makah a treaty allocation, NMFS has no authority to overrule the 
Council vote. NMFS disagrees with this statement.
    The determination of whether the tribes have a treaty right is a 
legal determination. NMFS, not the Council, is charged with determining 
whether FMPs and management measures comply with other applicable law. 
See 16 U.S.C. 1854(a)(1)(B). Indian treaty rights are constitutionally 
recognized as the ``supreme law of the land'' and thus are ``other 
applicable law.'' NMFS, like all Federal agencies, has an obligation to 
ensure that Indian treaty rights are not abrogated or infringed absent 
a specific Act of Congress.
    One commenter asserted that NMFS had not complied with the 
requirements of E.O. 12866 once the Office of

[[Page 28791]]

Management and Budget (OMB) had determined that the proposed regulation 
was ``significant'' under that executive order. NMFS disagrees. NMFS 
complied with the submission requirements of section 6(a)(3)(B) of E.O 
12866 by providing OMB the appropriate documentation for review after 
being informed that OMB determined the proposed regulation to be 
``significant.''

Tribal Authority

    The Quileute Tribe commented:

    The proposed rule, while recognizing treaty rights to 
groundfish, fails to recognize the sovereign status and co-manager 
role of Tribes over shared federal and Tribal resources. Paragraph 
(d) gives complete process control to NMFS. The paragraph should be 
rephrased to implement a Federal-Tribal consensus process in the 
implementation of all treaty allocations or regulations.

    NMFS has revised paragraph (d) of Sec. 663.24 by adding two final 
sentences as follows:

    The Secretary recognizes the sovereign status and co-manager 
role of Indian tribes over shared federal and tribal fishery 
resources. Accordingly, the Secretary will develop tribal 
allocations and regulations under this paragraph in consultation 
with the affected tribe(s) and, insofar as possible, with tribal 
consensus.

    The Quinault Nation commented:

    Sec. 663.24(i) of the proposed rule provides that fishing by 
members of Washington Coastal Tribes for species not covered by an 
allocation or special tribal regulation is subject to the same 
regulations as fishing by non-treaty fishers. This provision ignores 
the well-established conservation limitation on both federal and 
state regulation of treaty hunting and fishing activities. The 
government bears the burden of demonstrating that regulations which 
it seeks to apply to Indians exercising treaty hunting and fishing 
rights are reasonable and necessary for conservation. See, United 
States v. Williams, 898 F.2d 727, 729-30 (9th Cir. 1990); United 
States v. Sohappy, 770 F.2d 816, 824 (9th Cir. 1985).
    NMFS should identify, in consultation with affected tribal 
governments, those general regulations applicable to species for 
which there is no allocation or special regulation accommodating 
tribal rights, whose application to treaty Indians NMFS believes to 
be reasonable and necessary for conservation. Blanket application of 
general regulations whose application to treaty Indians has not been 
demonstrated to be reasonable and necessary for conservation is an 
impermissible effort to avoid the limitation on NMFS authority to 
regulate treaty Indian fishing and violates the due process rights 
of treaty fishers to proper notice of those regulations which NMFS 
may lawfully enforce.''

    In the situation addressed by the comment (where groundfish species 
within a tribe's U&A are not covered by an allocation or regulation 
under Sec. 663.24), NMFS believes that application of the Federal 
groundfish regulations in 50 CFR part 663 to fishing by tribal members 
is reasonable and necessary for conservation.
    Under this rule, the four affected Indian tribes may request an 
allocation for a new species; then, an appropriate allocation would be 
determined and announced in NMFS's annual specifications. Treaty 
fisheries for that species are then managed pursuant to tribal 
regulations and any additional regulations promulgated by NMFS under 
Sec. 663.24. Until a tribe applies for an allocation and implements 
tribal regulations, fishing by tribal members would be unregulated 
unless it were controlled by the Federal groundfish regulations. In the 
absence of applicable tribal or state regulations, the Federal 
regulations, which include management measures necessary to keep the 
fishery within the harvest guidelines established for the numerous 
groundfish species, are reasonable and necessary for conservation. This 
rule ensures orderly implementation of new fisheries for which the 
exact quantification of the treaty right has not been determined.

Quantification of the Treaty Right

    Three commenters agreed with NMFS that the proportion of the 
coastwide Pacific whiting biomass found in the Makah U&A is the 
appropriate basis for determining the amount of Pacific whiting to 
allocate to the Makah. However, several of the same commenters took 
issue with NMFS' application of a 1.375 exploitation rate multiplier in 
recognition of the conservation necessity principle. Noting that the 
1.375 multiplier was based on the observed exploitation rate in the 
Eureka International North Pacific Fisheries Commission (INPFC) area in 
1989, one commenter argued that the multiplier was incorrect for two 
reasons. First, the Eureka area provides only 2 percent of the catch at 
a measured 33 percent exploitation rate, whereas the remaining areas 
provide 98 percent of the catch at a 24 percent exploitation rate. 
Second, the biomass estimates are made in the summer but the Eureka 
area fishery occurs in the spring. The biomass estimates show a 
relatively low biomass in the Eureka area because whiting have migrated 
north after the spring fishery. The commenters assume that the Eureka 
area had a higher biomass at the time of the fishery, and, therefore, 
the multiplier is overestimated. Another commenter noted that the 1992 
and 1995 hydroacoustic biomass surveys have shown that the 1989 and 
earlier surveys and biomass estimates missed a substantial offshore 
biomass. If earlier surveys are corrected for the missing offshore 
biomass, the exploitation rate in the affected areas would be reduced 
from what was estimated in 1989.
    NMFS agrees that the ``calculation of the exploitation rate by area 
in the 1989 and 1992 survey years is less precise because the timing of 
the U.S. fishery changed. In 1989, the at-sea fishery was completed in 
June, prior to the start of the hydroacoustic survey. The 1989 data 
indicate a higher exploitation rate in the Eureka area; however, this 
exploitation rate would overestimate the true rate if there were 
further northward movement of fish before the survey occurred'' 
(September 27, 1995, memorandum from Richard Methot to Bill Robinson). 
NMFS also agrees that hydroacoustic surveys prior to the 1992 survey 
likely missed a substantial biomass offshore of the survey area. The 
United States and Canada, pursuant to the negotiation of a U.S.-
Canadian bilateral whiting allocation, have tasked a joint technical 
team to develop an offshore expansion factor that can be applied to 
survey results between 1977 and 1989 to correct the survey results for 
the unsurveyed biomass. Thus, NMFS agrees that the 1.375 multiplier 
used by NMFS in its proposed quantification of the Makah whiting 
entitlement might later be shown to be too high. NMFS notes, however, 
that in 1989, 51 percent of the catch came from the Eureka area, not 
the 2 percent claimed by the commenter.
    The Makah comments claim that recent ``allocations to shore-based 
processing facilities have had the effect of concentrating the harvest 
in the vicinity of those facilities,'' presumably resulting in higher 
exploitation rates in areas smaller than the Eureka INPFC area. The 
Makah comments go on to say that ``NMFS has made no effort to evaluate 
the extent to which exploitation rates in areas the size of the Makah 
fishing grounds have deviated from the average'' and that this type of 
calculation could be used as a basis for a larger expansion factor. 
NMFS agrees that it has not developed exploitation rate data for any 
specific small areas of the coast, including the Makah U&A. The 1.375 
multiplier used by NMFS was calculated using the larger INPFC catch 
reporting and stock assessment areas. NMFS agrees that calculations 
using smaller areas, if possible, could result in an expansion factor 
larger than 1.375. As stated earlier, a major reason that NMFS is 
implementing the 15,000-mt compromise for 1996 is to provide additional 
time to deal with the extremely complex task of relating the

[[Page 28792]]

biology, migration, and conservation of Pacific whiting to the legal 
principles necessary to establish a treaty-based allocation that is 
consistent with the ``conservation necessity principle.''
    One commenter argued that since the average whiting catch taken 
from the Makah U&A is 9.9 percent of the U.S. harvest guideline, the 
Makah should be allocated no more than 4.95 percent of the U.S. harvest 
guideline (50 percent of 9.9). This is the allocation method (based on 
historical harvest) used for halibut in Makah v. Brown. Since the 
historical halibut harvest in the Tribe's U&A was allowed to greatly 
exceed the biomass, the court assumed that it reflected a safe level of 
harvest. For whiting, the historical harvest and biomass in the U&A are 
roughly equivalent. However, NMFS has no evidence that a somewhat 
higher level of harvest from the U&A cannot be accommodated without 
triggering conservation concerns. Thus, basing the allocation on 
historical harvest in the U&A does not properly take into account the 
``conservation necessity principle''.
    Another commenter argued that the Makah allocation should be based 
only on the proportion of the biomass found in the Tribe's U&A. This 
argument was rejected in Makah v. Brown, specifically because it did 
not take into account the ``conservation necessity principle.'' In 
making the allocation to the Makah, NMFS must, by law, take into 
account the ``conservation necessity principle.'' How to apply the 
``conservation necessity principle'' to the biology of whiting is a 
complex and difficult issue over which NMFS and the Makah do not agree. 
NMFS is implementing the 15,000-mt compromise proposal to afford more 
time for NMFS to consult with other Federal agencies, the Tribes, and 
the States to resolve this issue.
    One commenter argued that due to the migratory behavior of whiting, 
they are available in the Makah U&A only 7 months of the year. As a 
result, the commenter proposed that the Makah treaty entitlement be 50 
percent of \7/12\ of the biomass in the Makah U&A. NMFS disagrees. 
There are no precedents in treaty law pertaining to either Pacific 
halibut or salmon that use seasonality as a discounting factor in 
determining the treaty entitlement. Pacific salmon, for example, may be 
available in a tribe's U&A for only a portion of the year, but that has 
never reduced the tribal share. The best available information 
regarding the amount of whiting in the tribal U&A are the triennial 
hydroacoustic surveys, which likely measure the maximum biomass in the 
area since the survey occurs at the peak of the northward summer 
migration.
    The Makah in their comments also raise the issue of migration in 
the context of asserting that dense concentrations of whiting occur 
both south and north of the Makah U&A and may either move in and out or 
pass through the Tribe's area during the course of their northerly 
migration. As mentioned above, other than the triennial survey, there 
is little or no data regarding the proportion of whiting that pass 
either through or offshore of the Makah U&A during other times of the 
year or during the northerly migration. Based on recent surveys that 
have identified substantial biomass offshore of what was once thought 
to be the range of whiting biomass, it is reasonable to conclude that a 
significant proportion migrates seaward of (outside) the tribal area. 
However, the triennial survey remains the only quantitative estimate to 
date, and should be considered the best available information.
    NMFS continues to believe that the appropriate method to quantify 
the Makah whiting treaty entitlement is to rely on biomass and harvest 
estimates for Pacific whiting, which are the only data available, and 
to base the Makah treaty entitlement on the whiting biomass in the 
Makah U&A, taking into account the conservation necessity principle. 
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.

Makah Indian Tribe v. Brown, No. C85-160R, and United States v. 
Washington, Civil No. 923--Phase I, Subproceeding No. 92-1 (W.D. Wash., 
Order on Five Motions Relating to treaty Halibut Fishing, Dec. 29, 
1993).
    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.
    The Makah Tribe has not stated what it believes is the appropriate 
method to use in quantifying the treaty right. The Makah initially 
proposed an allocation that would result in their harvesting up to 
approximately 25 percent of the total U.S. harvest guideline in the 
Makah U&A. After further discussions with NMFS, the Makah made a 
compromise proposal for an allocation of 15,000 mt for 1996.
    The Makah comments on the proposed rule do not offer a definitive 
method of quantifying the tribal treaty right, but instead focus on 
criticizing the basis for the NMFS proposed method. The Makah agree 
that their treaty right affords the tribe the opportunity to take 50 
percent of the harvestable surplus in their U&A grounds and that the 
harvestable surplus must be determined in accordance with the 
conservation necessity principle. The Makah argue that, before NMFS can 
limit the Tribe's harvest, NMFS must demonstrate that its determination 
of the harvestable surplus ``is required to prevent demonstrable harm 
to the actual conservation of fish.'' See, United States v. Washington, 
384 F. Supp. 312, 415 (W.D. Wash., 1974). The Makah claim that NMFS has 
not demonstrated that it is necessary for conservation to limit the 
harvest in the Makah area to the amount set by the NMFS' formula. The 
Makah also claim that NMFS has not applied the same management 
principle it invokes for the Tribe's fishery to non-treaty fisheries.
    NMFS' proposal, described in detail in the proposed rule, is to 
quantify the Tribe's treaty right by a method that is linked to the 
biomass within the Tribe's U&A grounds (9.4 percent of the U.S. portion 
of the biomass), enlarged by a multiplier, currently estimated as 
1.375, which represents an estimate of the highest harvest level that 
can be sustained over the long term without raising conservation 
concerns. 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. NMFS believes that 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.
    If the quantification of the treaty right were based solely on the 
Makah arguments that NMFS must show demonstrable harm to resource 
before limiting the Makah harvest, given the biology and biomass 
distribution of whiting, the Makah could logically argue that the 
treaty right entitled the tribe to 50 percent of the entire coastwide 
harvest (between Central California and the U.S.-Canadian border) 
despite the fact that only about 10 percent of both the biomass and the 
historical harvest occur within the Makah U&A. NMFS does not believe

[[Page 28793]]

that this is an appropriate application of the conservation necessity 
principle for the purpose of determining a treaty entitlement, because 
it does not take into account the amount of fish available in the U&A 
and would shift the distribution of a large proportion of the coastal 
harvest into the Makah U&A, which is a small geographical area 
(approximately 8.4 percent of the Columbia/Vancouver INPFC areas where 
most of the whiting harvest occurs).
    As stated in the proposed rule, NMFS believes that a high degree of 
harvest concentration creates a conservation concern if (1) it involves 
a large fraction of the total harvest, (2) it is a large deviation from 
the average harvest rate for the fishing area, and/or (3) it will occur 
indefinitely. Although data are not presently available that would 
allow NMFS to evaluate exactly the biological effects of the Makah 
proposal, it raises all three of these concerns.
    NMFS acknowledges that many difficult questions have been raised, 
and that there is much uncertainty regarding what is a complex and 
difficult technical and legal issue. NMFS believes that allocating 
15,000 mt of whiting to the Makah for 1996, although a compromise, 
provides both a reasonable accommodation of the treaty right and 
additional time for NMFS to work with other Federal agencies, the 
States, and the tribes to resolve these issues. Because the 15,000 mt 
allocated to the Makah for 1996 is not significantly greater than the 
quantity of fish NMFS would have allocated in 1996 under its own 
proposal (13,800 mt), NMFS believes that the compromise is within the 
range of the treaty right. NMFS intends to seek resolution of the 
treaty right quantification issue either through continued discussions 
with the tribes or in the context of the recent subproceeding 96-2 in 
United States v.  Washington.
    Three commenters supported the 15,000-mt compromise allocation for 
1996.

Economic Impacts on Non-Indian Fishers, Processors and Coastal 
Communities

    Four commenters claimed that the framework for allocating 
groundfish to the tribes and the proposed allocation of Pacific whiting 
to the Makah would have a significant economic impact on a substantial 
number of small entities. The commenters estimated that an allocation 
of between 13,800 and 25,000 mt would reduce the shoreside processing 
season by 6 to 13 days, which would reduce revenues and employment at 
shoreside processing plants. One commenter claimed that decreasing the 
whiting available to the non-Makah fishing industry will adversely 
impact other groundfish fisheries as a result of transfer of effort to 
other groundfish species.
    NMFS agrees that any allocation of groundfish to the treaty tribes 
comes at the expense of the fully-utilized non-Indian groundfish 
industry. The framework procedures implemented by this rule, however, 
do nothing more than establish the steps by which NMFS implements 
treaty rights. It determines neither which species will be allocated to 
the tribes, nor the specific amounts of groundfish to be allocated. As 
such, the framework procedures have little or no economic impact. At 
the time that NMFS determines the specific treaty entitlement for each 
groundfish species, it will assess the economic impacts of the 
allocation. However, treaty Indian rights are ``other applicable law'' 
with which Magnuson Act regulatory actions must be consistent.
    Allocating 15,000 mt of Pacific whiting to the Makah reduces the 
non-Indian harvest guideline by about 7 percent. That economic impact, 
which is divided among the at-sea and shoreside catching and processing 
sectors and must be considered in the context of fisheries income from 
non-whiting species during the remainder of the year, is not likely to 
be significant relative to any single fishing business in 1996. As 
discussed in the EA/RIR/IRFA, due to a substantial increase in 
harvestable biomass, all industry sectors will catch and process more 
whiting in 1996 than during 1995, and this is expected to extend 
several years into the future. To the extent that other coastal treaty 
tribes develop a whiting fishery in the future, and depending on how 
the treaty right to whiting is ultimately quantified, future 
allocations to the treaty tribes may have a significant economic impact 
on the non-Indian whiting industry.

Other Species

    Six commenters argued that NMFS must conduct a formal consultation 
under Section 7 of the ESA to take into account a localized fishery of 
a significant nature that could incidentally harvest endangered species 
of salmon. NMFS conducted a formal Section 7 consultation for the 
Pacific Groundfish FMP and issued a biological opinion dated August 28, 
1992, that 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. Subsequent reinitiations of the consultation on 
September 27, 1993, and May 15, 1996, reached the same conclusion. 
Allocating 15,000 mt of whiting to the Makah for 1996 only does not 
increase the total U.S. whiting harvest, nor will it result in a 
whiting catch in the Makah U&A any greater than has occurred 
periodically in the past. Thus, the impacts on listed salmon species 
are not likely to be different from those assessed in the current 
biological opinion.
    One commenter expressed concern about stocks of salmon that are 
subject to management under the Pacific Salmon Treaty, particularly 
Fraser River salmon stocks. The most abundant Fraser River salmon 
stocks are sockeye and pink salmon. The salmon bycatch in the whiting 
fishery is predominantly chinook salmon with some pink salmon during 
odd-numbered years. Fraser River chinook salmon are far-north migrating 
stocks which are not abundant in areas where the U.S. whiting fishery 
occurs, including the Makah U&A. Some Fraser River pink salmon may be 
taken incidentally during odd-numbered years, but the numbers are not 
significant. The tribal fishery approved for 1996 should not have 
impacts greater than what has occurred in the past.
    One commenter claimed that the NMFS proposal to manage rockfish 
under the limited entry trip limit regime (until such time a treaty 
entitlement and allocation is determined) does not limit the tribal 
rockfish catch to the amount that can be safely landed from the tribal 
U&A. The Makah will begin to fish whiting for the first time in 1996. 
Based on the allocation of 15,000 mt of whiting to the Makah, it is not 
likely that Makah fishermen will utilize more than two or three trawl 
vessels to harvest their allocation. Those tribal vessels may also land 
rockfish when the Makah whiting fishery is closed. NMFS does not 
believe that three additional fishing vessels landing rockfish under 
the relatively restrictive limited entry trip limit regime will result 
in rockfish catches in excess of what can be safely allowed to occur. 
The fishery is managed under an overall harvest guideline that is 
designed to protect the stocks. This fishery will operate within that 
harvest guideline.
    Finally, one commenter asserted that there was ``no assurance of 
the assumption the tribal fisheries will abide by limited entry 
fishery-trip limit regime(s) for other species.'' NMFS has received 
assurances from the tribes that tribal fisheries for non-whiting 
groundfish species with harvest

[[Page 28794]]

guidelines and/or trip limits under the limited entry fishery trip 
limits will abide by those trip limits. NMFS knows of no evidence that 
the coastal treaty tribes have condoned fishing in violation of either 
tribal or Federal regulations at any time or for any species.

Secretarial Action

    NMFS, acting on behalf of the Secretary, allocates 15,000 mt of 
Pacific whiting to the Makah Tribe in 1996.

Classification

    The Assistant Administrator for Fisheries, NOAA (Assistant 
Administrator), has determined that this final 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) 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 which the Makah have agreed to 
manage under the current limited entry trawl-trip limits, and for the 
allocation of 15,000 mt of whiting to the Makah for 1996. On the basis 
of the EA, the Assistant Administrator concluded that there would be no 
significant impact on the environment.
    NMFS prepared an initial regulatory flexibility analysis as part of 
the regulatory impact review, which describes the impact of this rule 
on small entities. That analysis concluded that the allocation of 
15,000 mt of Pacific whiting to the Makah in 1996 would result in a 
decline in whiting revenue to the non-Indian participants in the 
whiting fishery that would represent between 1 and 3 percent of total 
gross fishing revenues from all fishing activities. Based on that 
analysis, the Assistant Administrator determined that neither the 
framework nor the 15,000-mt whiting allocation to the Makah would have 
a significant economic impact on a substantial number of small 
businesses. The Assistant General Counsel for Legislation and 
Regulation of the Department of Commerce certified to the Chief Counsel 
for Advocacy of the Small Business Administration that this rule would 
not have a significant economic impact on a substantial number of small 
entities. Therefore a final regulatory flexibility analysis was not 
required.
    This final rule has been determined to be not significant under 
E.O. 12866. The proposed rule on this matter was determined to be 
significant under E.O. 12866. However, after OMB review of the proposed 
rule and discussions with the Department of Commerce and the Department 
of the Interior, it was determined that this final rule is not 
significant under E.O. 12866.
    The Director, Northwest Region, NMFS, initially determined that the 
proposed rule was consistent with applicable state coastal zone 
management programs, as required. The initial determination was 
submitted for review by the responsible state agencies under section 
307 of the Coastal Zone Management Act. The State of Oregon concurred 
with the determination, the State of Washington had no comments, and 
the State of California did not respond so its concurrence is inferred.
    A formal section 7 consultation under the ESA was concluded for the 
Pacific Coast Groundfish FMP. In a biological opinion dated August 28, 
1993, and subsequent reinitiations of consultation dated September 27, 
1993, and May 15, 1996, the Assistant Administrator 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 
rule is within the scope of those consultations.
    The 15,000-mt whiting allocation to the Makah in 1996 must be 
implemented by June 1, 1996, to assure there is enough whiting 
available to accommodate the tribal allocation without exceeding the 
U.S. annual harvest guideline. The U.S. whiting harvest guideline 
currently is divided 60 percent for all fishing vessels and 40 percent 
for vessels that deliver whiting to shore-based processing plants. The 
Makah whiting allocation must be deducted from the overall harvest 
guideline to determine the appropriate allocation for the all-vessel 
and the shore-based fishery. The fishery for all vessels began May 15 
and it is expected that the 60 percent allocation will be reached by 
June 1. This rule must be effective by June 1 so that the fishery for 
all vessels can be closed before it exceeds its revised allocation. 
Therefore, NMFS finds good cause pursuant to 5 U.S.C. 553(d)(3) to 
implement this rule by June 1, 1996, rather than delaying effectiveness 
for 30 days after publication in the Federal Register.

List of Subjects in 50 CFR Part 663

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 31, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 663 is amended 
as follows:

PART 663--PACIFIC COAST GROUNDFISH FISHERY

    l. The authority citation for part 663 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 663.2 the definition for ``commercial harvest guideline 
or commercial quota'' is added, 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; when taking and retention is prohibited under 
Sec. 663.23(b)(4)(iv), fail to keep the trawl doors on board the vessel 
and attached to the trawls on a vessel used to fish for whiting.
* * * * *
    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.-

[[Page 28795]]

Canadian 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 lb (45.36 kg) 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:


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 in paragraphs (c)(1) through (c)(4) of this section. Boundaries 
of a tribe's fishing area may be revised as ordered by a Federal court.
    (1) Makah--That portion of the FMA north of 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. The 
Secretary recognizes the sovereign status and co-manager role of Indian 
tribes over shared Federal and tribal fishery resources. Accordingly, 
the Secretary will develop tribal allocations and regulations under 
this paragraph in consultation with the affected tribe(s) and, insofar 
as possible, with tribal consensus.
    (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 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.-Canadian 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

[[Page 28796]]

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. 96-14141 Filed 5-31-96; 4:42 pm]
BILLING CODE 3510-22-P