[Federal Register Volume 64, Number 5 (Friday, January 8, 1999)]
[Proposed Rules]
[Pages 1341-1342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-264]



  Federal Register / Vol. 64, No. 5 / Friday, January 8, 1999 / 
Proposed Rules  

[[Page 1341]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 981231333-8334-02; I.D. 122898E]
RIN 0648-AM12


Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Tribal Allocation of Whiting for 1999

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS publishes a proposed rule to allocate a portion of the 
1999 Optimum Yield (OY) specification (formerly called ``harvest 
guideline'') for Pacific whiting to Washington coastal tribal 
fisheries. This rule is intended to accommodate the Washington coastal 
treaty tribes rights to Pacific whiting and to provide equitable 
allocation of the whiting resource and thereby promote the goals and 
objectives of the Pacific Coast Groundfish Fishery Management Plan 
(FMP).

DATES: Comments must be submitted in writing by February 8, 1999.

ADDRESSES: Send comments to Mr. William Stelle, Jr., Administrator, 
Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way 
N.E., BIN C15700, Bldg. 1, Seattle, WA 98115-0070. Information relevant 
to this proposed rule, including an Initial Regulatory Flexibility 
Analysis (IRFA), is available for public review during business hours 
at the office of the Regional Administrator, or may be obtained from 
NMFS by writing to the Sustainable Fisheries Division, NMFS, 7600 Sand 
Point Way N.E., BIN C15700, Bldg. 1, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Katherine King or Yvonne deReynier 
(Northwest Region, NMFS) 206-526-6140.

SUPPLEMENTARY INFORMATION: NMFS is proposing this rule based on 
recommendations of the Makah and Quileute Indian Tribes and the 
Council, under the authority of the FMP and the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) and 
regulations at 50 CFR 660.324. At its November 1998 meeting in 
Portland, OR, the Council recommended a range of alternative amounts of 
whiting from 25,000-35,000 mt to be set aside for the Washington 
coastal tribes. Those alternatives and the need to accommodate tribal 
treaty rights are discussed below.

Background

    Whiting is the most abundant groundfish resource managed by the 
Council, and makes up over 50 percent of the potential annual 
groundfish harvest. In late 1994, the U.S. Government formally 
recognized that the four Washington Coastal Tribes (Makah, Quileute, 
Hoh, and Quinault) have treaty rights to fish for groundfish, and 
concluded that, in general terms, the quantification of those rights is 
50 percent of the harvestable surplus of groundfish available in the 
tribes' usual and accustomed (U and A) fishing areas (described at 50 
CFR 660.324). In 1996, whiting was allocated to the Makah treaty Indian 
tribe for the first time (61 FR 28786, June 6, 1996). Thereafter, any 
allocation among domestic sectors was to be based on the harvest 
guideline minus any tribal allocation. A tribal allocation is 
subtracted from the species OY before limited entry and open access 
allocations are derived. The treaty tribal fisheries for whiting, as 
well as those for sablefish and black rockfish, are separate fisheries, 
not governed by the limited entry or open access regulations or 
allocations. The tribes regulate these fisheries so as not to exceed 
their allocations. Tribal allocations of whiting have been included in 
final specifications and management measures published annually by 
NMFS, but for reasons explained below, the 1999 final specifications 
and allocations for whiting will not be recommended by the Council 
until its March 1999 meeting. After the Council recommends a final 
whiting acceptable biological catch (ABC) and an OY and a tribal 
whiting allocation, NMFS will publish approved final specifications and 
allocations for whiting in the Federal Register. Final specifications 
are published in the final rules section of the Federal Register, but 
are not codified. The 1999 groundfish fishery specifications and 
management measures for all other groundfish species managed under the 
FMP are published elsewhere in this issue and reference therein is made 
to this proposed rule.

Preliminary ABC/OY

    A new stock assessment for whiting is expected in early 1999, so 
the Council has delayed its recommendation of a final whiting ABC and 
OY until March so that it will be able to consider the new stock 
assessment. The preliminary ABC and OY considered by the Council for 
whiting are a range, with the upper end at the 1998 ABC/HG (232,000 mt) 
and the lower end (178,000 mt) at 80 percent of the ABC projected for 
the U.S. and Canada combined. (Eighty percent is the proportion of the 
combined ABC in Canadian and U.S. waters that is caught in U.S. 
waters.) The final ABC and OY will be recommended at the Council's 
March 1999 meeting, at which time the tribal allocation will also be 
considered. The commercial OY (the OY minus the tribal allocation) will 
be allocated 42 percent to the shore-based sector, 24 percent to the 
mothership sector, and 34 percent to catcher/processors.

Projected 1998 Landings and Continuation of Regulations

    Landings projections indicate that the 1998 whiting fisheries 
catches will be very close to the whiting OY of 232,000 mt: 87,548 mt 
by the shore-based fleet; 70,364 mt by the catcher/processing sector; 
50,086 mt by the non-tribal mothership sector, and about 25,000 mt by 
the Makah tribal fishery. The 10,000-lb (4,536-kg) trip limit for 
whiting taken before and after the regular whiting season and inside 
the 100-fathom (183-m) contour in the Eureka subarea (40 deg.30'-
43 deg.00' N. lat.) continues in effect in 1999. Additional 
regulations, including the percentages used to allocate whiting among 
non-tribal sectors (42 percent to the shore-based sector, 24 percent to 
the mothership sector, and 34 percent to catcher/processors), are found 
at 50 CFR 660.323(a)(4).

Options for 1999 Allocation

    In 1997 and in 1998, the tribal allocation for whiting was 25,000 
mt and was announced in the annual specifications (62 FR 700, January 
7, 1997, and 63 FR 419, January 6, 1998). For 1999, however, the tribal 
whiting allocation will not be determined until after the Council has 
made recommendations on the overall landed catch OY for whiting and on 
the tribal whiting allocation at its March 1999 meeting.
    Two options for a 1999 tribal whiting allocation were proposed at 
the September 1998 Council meeting: (1) To set aside 25,000 mt of the 
U.S. OY for tribal whiting fisheries (which is the same amount that was 
set aside for the tribe in both 1997 and 1998); or (2) to adopt a 
tribal-Federal proposed allocation scheme that varies the amount of 
whiting set aside for the Makah Tribe according to the overall amount 
of the U.S. OY, and that sets aside 2,500 mt for the Quileute Tribe.

[[Page 1342]]



------------------------------------------------------------------------
                                                               Quileute
               U.S. OY                   Makah allocation     allocation
                                                               (in mt)
------------------------------------------------------------------------
Up to 145,000 mt....................  17.5% of the U.S. OY.        2,500
145,001 to 175,000 mt...............  25,000 mt............        2,500
175,001 to 200,000 mt...............  27,500 mt............        2,500
200,001 to 225,000 mt...............  30,000 mt............        2,500
225,001 to 250,000 mt...............  32,500 mt............        2,500
Over 250,000 mt.....................  35,000 mt............        2,500
------------------------------------------------------------------------

    If the Quileute Tribe is unable to use its full allocation, the 
unused portion would be released to the Makah Tribe to harvest by the 
end of the year. This proposal is for 1999 only.

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-Stevens Act and other applicable law.
    This proposed rule has been determined by the Office of Management 
and Budget to be not significant for purposes of E.O. 12866.
    For the proposed tribal allocation of whiting, NMFS prepared an 
IRFA, under the Regulatory Flexibility Act, that describes the impact 
this proposed rule, if adopted, would have on small entities. The RFA 
identifies six items to be discussed in the IRFA. Those items are 
summarized here. (1) A description of the reasons why action by the 
agency is being considered: At the Council's September and November 
1999 meetings, the Makah and Quileute treaty tribes submitted a 
proposal for determining annual tribal allocations of whiting. In late 
1994, the U.S. government formally recognized that the four Washington 
Coastal Tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights 
to fish for groundfish, and concluded that, in general terms, the 
quantification of those rights is 50 percent of the harvestable surplus 
of groundfish available in the tribes' usual and accustomed fishing 
areas (described at 50 CFR 660.324). NMFS is obligated to accommodate 
the treaty rights of the treaty tribes off the Pacific coast of 
Washington State. The tribal proposal for allocation of whiting would 
be 30,000-35,000 mt in 1999. The Council proposed continuation of a 
25,000-mt allocation, as occurred in 1997 and 1998. Therefore, the 
tribal allocation being considered for whiting in 1999 would be from 
25,000-35,000 mt. (2) A succinct statement of the objectives of, and 
legal basis for, the proposed rule: The objective is to accommodate 
tribal treaty rights, as required by the Stevens treaties and as 
interpreted in the case of U.S. v. Washington. See IRFA for further 
citations. (3) A description of and, where feasible, an estimate of the 
number of small entities to which the proposed rule will apply: The 
small entities directly affected by the proposed rule include catcher 
boats (tribal and nontribal) that harvest whiting and deliver to either 
shore-based processors or mothership processors at sea; and shore-based 
processors that process whiting. A total of 74 small entities could be 
directly affected by the allocation because the amount of whiting 
available to them would change. Less whiting would be available to 
nontribal small businesses that use whiting because it is allocated to 
the treaty tribes. Conversely, one to six tribal catcher boats, which 
also are small businesses, would be directly affected, but in a 
positive manner, by receiving the tribal allocation. All limited entry 
groundfish fishing vessels and processors could be indirectly affected, 
which is virtually all small businesses participating in the Pacific 
coast groundfish fishery. The major, negative indirect effect of the 
proposed allocation is that the entire groundfish limited entry fleet 
and nontribal processors may find their limits for non-whiting species 
lowered, or allocations reached earlier, if established whiting 
operations are displaced by tribal whiting operations, resulting in 
additional effort on other fully utilized fisheries. (4) A description 
of the projected reporting, recordkeeping and other compliance 
requirements of the proposed rule, including an estimate of the classes 
of small entities which will be subject to the requirement and the type 
of professional skills necessary for preparation of the report or 
record: There are no projected reporting, recordkeeping, or compliance 
requirements in the proposed action. (5) An identification, to the 
extent practicable, of all relevant Federal rules which may duplicate, 
overlap, or conflict with the proposed rule. NMFS believes there are no 
Federal rules which may duplicate, overlap, or conflict with the 
proposed action. (6) Significant alternatives to the proposed rule: 
Because the tribes have a treaty right to harvest whiting and have 
indicated that they plan to exercise the treaty right, there is no way 
to accomplish the objective of accommodating the treaty right without 
setting aside an appropriate amount of whiting for the tribes. The 
Council is considering the range of alternative amounts of whiting 
described above. The lower amount of whiting being considered would 
result in a lesser impact to the non-treaty fishery, but may not 
accommodate the full treaty right of the tribes. The larger amount 
would have a larger impact on the non-treaty fishery. The tribes and 
NMFS are proposing the amount believed to most appropriately 
accommodate the treaty right pending final resolution of the 
quantification of the right through litigation or negotiation. A copy 
of this analysis is available from NMFS (see ADDRESSES).
    This proposed rule does not contain any collection-of-information 
requirements subject to the Paperwork Reduction Act.

    Dated: December 31, 1998.
Andrew A. Rosenberg,
Deputy Assist. Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-264 Filed 1-7-99; 8:45 am]
BILLING CODE 3510-22-P