[Federal Register Volume 64, Number 99 (Monday, May 24, 1999)]
[Rules and Regulations]
[Pages 27928-27934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13037]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 660

[Docket No. 981231333-9127-03; I.D. 122898E]
RIN 0648-AM12


Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Final 1999 ABC, OY, and Tribal and 
Nontribal Allocations for Pacific Whiting

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

ACTION: Final rule.

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SUMMARY: NMFS publishes a final rule to announce the 1999 optimum yield 
(OY) specification (formerly called ``harvest guideline'') for Pacific 
whiting (whiting) harvested off Washington, Oregon, and California, and 
announces allocation of a portion of the OY 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 promoting the goals 
and objectives of the Pacific Coast Groundfish Fishery Management Plan 
(FMP).

DATES: Effective May 19, 1999.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) for this 
action is available from NMFS, Northwest Region, Sustainable Fisheries 
Division, 7600 Sand Point Way NE, Bldg. 1, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: William Robinson, Northwest Region, 
NMFS, 206-526-6140.

SUPPLEMENTARY INFORMATION: Two actions are announced in this document: 
The final 1999 acceptable biological catch (ABC) and OY for whiting and 
allocation of part of that OY to the Washington coastal treaty tribes. 
Further background on these actions is found in the notice of proposed 
rulemaking, which was published in the Federal Register on January 8, 
1999 (64 FR 1341) with a request for comments. Comments were received 
only on the tribal allocation, and are addressed later in this 
document. A draft EA/RIR (dated March 1, 1999) and an Initial 
Regulatory Flexibility Analysis (IRFA) (dated December, 17, 1998) were 
prepared for the tribal allocation and made available at the March 9-
12, 1999, meeting of the Pacific Fishery Management Council (Council). 
An FRFA has been prepared and is appended in the final EA/RIR/FRFA for 
the tribal allocation.

1999 ABC/OY

    Preliminary ranges for the U.S. ABC and OY were recommended at the 
Council's November 1998 meeting. The upper end was 232,000 mt, the same 
as the 1998 ABC and OY for U.S. waters. The lower end was 178,000 mt 
(the amount projected for the ABC (the proxy for maximum sustainable 
yield (MSY), also called the MSY proxy) for the U.S. and Canada 
combined in the then most recent stock assessment for the 1998 
fishery), multiplied by 0.8, which is the proportion taken by the 
United States in recent years.
    The final OY for whiting was delayed from the normal January 1 
specification cycle so that data from the summer 1998 survey could be 
analyzed and incorporated into a new stock assessment. The new 
assessment was considered at the March 9-12, 1999, Council meeting.
    A number of issues were discussed such as: (1) the appropriate 
harvest policy to be used--whether to continue with the hybrid harvest 
policy used in recent years, or to convert to the 40-10 harvest policy 
adopted for most other groundfish species (see the annual 
specifications published at 64 FR 1316 January 8, 1999, and Amendment 
11 to the FMP); (2) continuation of the 80-percent U.S. allocation of 
the U.S.-Canada MSY; and (3) whether the ABC and OY should apply only 
to 1999, or whether it could be applied to the year 2000 as well, since 
a new assessment will not be conducted in 1999.

ABC

    Under Amendment 11 to the FMP, ABC is set equal to a default proxy 
for the fishing mortality rate (F) needed to produce the MSY (Fmsy). In 
recent years, a hybrid F harvest policy, similar to the F35 policy used 
for other groundfish species, was used as the Fmsy proxy for whiting 
(``F35'' means the fishing mortality rate that reduces the spawning 
potential per recruit to 35 percent of the unfished condition). F35 is 
commonly used in the FMP for faster growing stocks or stocks with 
quicker recruitment. The new policy, F40 with the 40-10 OY adjustment, 
results in similar harvest rates to the moderate hybrid F policy used 
in previous years. Consequently, the Council endorsed the use of the 
more conservative F40 for whiting, which would result in a U.S.-Canada 
ABC of 320,000 mt in 1999 (and 297,000 mt in 2000). Applying the 80-

[[Page 27929]]

percent U.S. share would result in a U.S. ABC of 256,000 mt in 1999 
(and 237,600 in 2000). However, the Council recommended a more 
conservative U.S. ABC of 232,000 mt for 1999, and signaled its intent 
to do the same in 2000, as discussed below.

OY

    Amendment 11 also adopted a new, precautionary policy for 
establishing OY. This policy is more completely described in the annual 
specifications (64 FR 1316, January 8, 1999). Under this policy, if the 
stock biomass (B) is believed to be equal to or less than the MSY 
biomass (Bmsy), a precautionary OY threshold is established at the MSY 
biomass size, which is assumed to be 40 percent of the unfished 
biomass. A stock whose current biomass is between 25-40 percent of the 
unfished level is said to be in the ``precautionary zone.'' The farther 
the stock is below the precautionary threshold (in this case 40 percent 
of the unfished biomass), the greater the reduction in OY will be 
relative to the ABC. This default harvest policy is also called the 
``40-10'' policy because the OY is set according to a mathematical 
relationship that reduces the OY at an increasing rate to zero as the 
stock approaches 10 percent of its unfished biomass (e.g., the farther 
the stock is below the precautionary threshold, the greater the 
reduction in OY will be relative to the ABC). In the nearterm, the 40-
10 policy results harvest levels similar to those obtained by the 
hybrid F policy previously used for whiting, but dampens the 
variability in harvest from year to year.
    The new stock assessment indicated that the mature female biomass 
of whiting in 1998 was at 37 percent of its unfished level, and, thus, 
is slightly into the precautionary zone. To determine the OY for the 
U.S. portion of the fishery, the 40-10 harvest policy is applied to the 
F40 MSY proxy for the U.S.-Canada combined, and then 80-percent (the 
U.S. share) of the resulting number is used; the resulting OY is 
240,800 mt for 1999 and 220,000 mt for 2000. This approach is more 
conservative than that used in the past in that the 80 percent factor 
is applied after the 40-10 value is calculated, rather than before. 
However, the final results over the next few years are similar to what 
would have been reached using the previous hybrid-F policy.

United States-Canada

    The allocation of the whiting resource between the United States 
and Canada is not resolved. The stock assessment was a collaborative 
effort between the two nations and there appears to be agreement as to 
the level of the combined U.S.-Canada MSY. However, the results of the 
new stock assessment were not available in time to hold formal 
negotiations with Canada before the March Council meeting. 
Consequently, the Council assumed continuation of the 80-percent share 
that the U.S. has harvested in recent years. Although Canada has in the 
past converted the U.S. catch into a 70-percent share, resulting in 
exceeding the US-Canada MSY by about 12 percent annually, NMFS hopes 
that the more conservative F40 and 40-10 harvest policy approach 
adopted by the United States for 1999 will also result in a more 
conservative approach by Canada. Meetings with Canada on this issue are 
expected to be scheduled in 1999.

Final U.S. ABC and OY

    Because no new whiting assessment will be conducted in 1999 for 
2000, the Council considered whether to use the individual-year 
recommendations from the assessment for 1999 and 2000, or to implement 
equal OYs at an intermediate level in both years. The Council preferred 
the latter approach, which results in equal U.S. OY values for 1999 and 
2000 at 230,000 mt. However, because these average levels were very 
close to the ABC and OY used in 1998, the Council recommended 
continuation of the 1998 U.S. ABC and OY in 1999, in which the U.S. ABC 
and OY are the same, 232,000 mt, based on an overall U.S.-Canada ABC of 
290,000 mt.

Tribal Allocation

    The Council considered tribal whiting allocations at its September 
meeting, but delayed its final recommendation until its March 1999 
meeting when the final ABC and OY recommendations were made. In 1999, 
the Quileute treaty tribe for the first time joined the Makah tribe in 
expressing interest in whiting, and the two tribes submitted a proposal 
for determining annual tribal allocations. This framework proposal that 
would vary the tribal allocation depending on the level of OY appears 
in the following table.

----------------------------------------------------------------------------------------------------------------
     U.S. Optimum yield (OY)             Makah               Quileute                 Total allocation
----------------------------------------------------------------------------------------------------------------
Up to 145,000 mt................  17.5% of the U.S.    2,500 mt...........  17.5% OY plus 2,500 mt.
                                   OY.
145,001 to 175,000 mt...........  25,000 mt..........  2,500 mt...........  27,500 mt.
175,001 to 200,000 mt...........  27,500 mt..........  2,500 mt...........  30,000 mt.
200,001 to 225,000 mt...........  30,000 mt..........  2,500 mt...........  32,500 mt.
225,001 to 250,000 mt...........  32,500 mt..........  2,500 mt...........  35,000 mt.
Over 250,000 mt.................  35,000 mt..........  2,500 mt...........  37,500 mt.
----------------------------------------------------------------------------------------------------------------

    The tribal proposal also states that if the Quileute Tribe is 
unable to fully utilize its amount, the unused portion would be 
released to the Makah tribe to enable the Makah tribe to harvest the 
unused portion by the end of the year. NMFS believes that the 
intertribal distribution of the overall tribal allocation is an 
internal tribal issue, and herein issues only a total allocation for 
the affected tribes.
    A proposed rule was published in the Federal Register (64 FR 1341, 
January 8, 1999) requesting comments on two options. The options 
considered were: (1) 25,000 mt, the tribal allocation in 1997 and 1998, 
as proposed by the Council for 1999; and (2) the tribal framework 
proposal that was expected to produce an allocation of 30,000-35,000 mt 
of whiting in 1999, based on the preliminary OY range of 178,000 to 
232,000 mt. NMFS does not believe the no-action alternative, which 
assumes no explicit tribal allocation, is a viable option, because it 
is contrary to tribal treaty rights. Consequently, the total tribal 
allocation of whiting in 1999 was proposed to be in the range of 
25,000-35,000 mt, with the lower end representing the Council's 
proposal and the upper end representing the tribal framework applied to 
the high end of the OY range (232,000 mt) proposed for 1999.
    Because the ABC and OY were uncertain, the IRFA and draft EA/RIR 
used the maximum tribal allocation of 35,000 mt (associated with an OY 
of 232,000 mt) to analyze the tribal proposal. At the March 1999 
Council meeting, the Quileute indicated that they would not be 
harvesting whiting in 1999. This reduced the tribal proposal for 1999 
by 2,500 mt. This change, plus recommendation of an ABC and OY at the 
same levels as in 1998, resulted in a revised tribal proposal of 32,500 
mt for

[[Page 27930]]

1999, 14 percent of the 232,000 mt OY, and 7,500 mt higher than in 
1998.
    The tribal allocation is subtracted from the species OY before 
limited entry and open access allocations are derived. The treaty 
tribal fisheries for sablefish, black rockfish, and whiting 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.

NMFS Decision on the Tribal Allocation

    NMFS believes the Makah have a treaty right to harvest half of the 
harvestable surplus of whiting found in the tribe's usual and 
accustomed fishing area in accordance with the legal principles 
elaborated in U.S. v. Washington. For further background refer to the 
proposed rule regarding the framework for treaty tribe harvest of 
Pacific groundfish (61 FR 10303, March 13, 1996). Under the legal 
principles of that case, the question becomes one of attempting to 
determine what amount of fish constitutes half the harvestable surplus 
of Pacific whiting in the Makah's usual and accustomed fishing 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 a case regarding Pacific halibut (Makah v. Brown, Civil 
No. C-85-1606R and U.S. v. Washington, Civil No. 9213-Phase I, 
Subproceeding No. 92-1 (W.D. Wash.)) most of the legal and technical 
precedents are based on the biology, harvest, and conservation 
requirements for Pacific salmon and shellfish, 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 1996 the 
Makah instituted a subproceeding in U.S. v. Washington, Civil No. 9213-
Phase I, Subproceeding No. 96-2, regarding their treaty right to 
whiting, including the issue of the appropriate quantification of that 
right. The quantification issue has not yet been litigated or otherwise 
resolved. The Makah have made a proposal for 32,500 mt of whiting in 
1999 that NMFS accepts as a reasonable accommodation of the treaty 
right for 1999 in view of the remaining uncertainty surrounding the 
appropriate quantification. This 1999 amount of 32,500 mt (14 percent 
of the 232,000-mt OY) is not intended to set a precedent regarding 
either quantification of the Makah treaty right or future allocations. 
NMFS will continue to attempt to negotiate a settlement in U.S. v. 
Washington regarding the appropriate quantification of the treaty right 
to whiting. If an appropriate methodology or allocation cannot be 
developed through negotiations, the allocation will ultimately be 
resolved in the pending subproceeding in U.S. v. Washington.

Comments and Responses

    Five letters on the proposed rule were received; three were from 
individuals representing industry associations in the shore-based 
whiting sector, and all were critical of any tribal allocation. Most of 
the comments were similar and are grouped together here, followed by 
NMFS' responses.
    Comment 1: Some commenters argued there should be no whiting 
allocation to the tribes until there are final decisions in a court 
case challenging treaty rights to Pacific whiting (citing the shellfish 
subproceeding, 89-3, in U.S. v. Washington and in a court case 
challenging the groundfish regulations regarding tribal treaty rights 
to groundfish (citing Midwater Trawlers Cooperative v. Secretary of 
Commerce, No. 97-36008 (9th Cir.)). They also argued there should be no 
allocation until a ``formal quantification of treaty rights (if any) 
under the procedures specified by the Supreme Court in U.S. v. 
Washington occurs.'' Finally, they argued that Congress expressed its 
clear intent that ``Federally recognized fishing rights'' under the 
Magnuson Fishery Conservation and Management Act (Magnuson-Stevens Act) 
means ``treaty fishing right[s] that [have] been finally approved by 
the courts under the procedures defined in section 19(g) of the final 
court order under United States versus Washington, and the approval is 
not subject to further appeal.'' (September 27, 1996 Congressional 
Record, page H11437). Commenters noted appeals in the above cases are 
still pending, and asserted that therefore no right exists. These 
issues will be addressed separately.
    Response: The relevant question in litigation in the shellfish 
subproceeding cited by commenters is whether tribes have treaty rights 
to all species of fish found in their usual and accustomed fishing 
areas, or only have rights to species they harvested at treaty time. In 
the shellfish subproceeding, the district court concluded:

    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] 873 F. Supp. at 1430.

    The Court of Appeals upheld this, and further stated:

    A more restrictive reading of the Treaties would be contrary to 
the Supreme Court's definitive conclusion that the Treaties are a 
``grant of rights from'' the Tribes. Winans, 198 U.S. at 3880, 25 
S.Ct. 662. We therefore reject Washington's argument that the Tribes 
are limited in the species of shellfish they harvest (157 F.3d 630 
at 644).

    Commenters argue that since a petition for certiorari has been 
filed with the U.S. Supreme Court in this case, no rights exist and 
NMFS should not provide any tribal allocation. However, the U.S. 
Supreme Court recently denied the petition for certiorari; NMFS must 
apply the law as interpreted by the 9th Circuit Court of Appeals.
    In addition, in the whiting subproceeding mentioned here the Judge 
ruled that Judge Rafeedee's ruling in the shellfish subproceeding 
``should remain the binding law of the case until the Ninth Circuit 
decides the appeal of the decision now pending before it.'' As noted, 
the 9th Circuit Court of Appeals has made its decision and upheld Judge 
Rafeedee's ruling.
    Plaintiffs also refer to the case of Midwater Trawlers Cooperative 
v. Secretary of Commerce. In that case the District Court dismissed the 
challenge to the existence of the treaty right to whiting because the 
tribes are necessary and indispensable parties to the litigation and 
cannot be joined. The 9th Circuit Court of Appeals recently reversed 
the District Court and found that the tribes are not necessary parties 
to the litigation because the Federal government can adequately 
represent the tribes on the issue of the existence of the treaty right. 
The underlying issue regarding the treaty right to whiting is being 
remanded to the District Court. However, the 9th Circuit Court of 
Appeals ruling in the shellfish subproceeding discussed above is that 
the tribes have treaty rights to all species of fish found in their 
usual and accustomed fishing area. This would cover the Makah treaty 
right to whiting. Plaintiffs had also alleged the tribal whiting 
allocations violated the National Environmental Policy Act, the 
Endangered Species Act (ESA) and the Regulatory Flexibility Act. The 
District Court and the 9th Circuit Court of

[[Page 27931]]

Appeals upheld the Agency's actions under those statutes.
    Commenters also argue no whiting should be allocated until ``formal 
quantification of treaty rights (if any) under the procedures specified 
by the Supreme Court in U.S. v. Washington occurs.'' Commenters did not 
cite to specific U.S. Supreme Court procedures, but we assume they were 
referring to procedures set out by Judge Boldt in one of his early 
decisions regarding exercise of off-reservation fishing rights to non-
anadromous fish and shellfish. This argument was addressed in the 
Response to Comments section on the rule regarding treaty fishing 
rights to groundfish at 61 FR 28786 (June 6, 1996).
    The statement, cited by the commenters, that ``Federally recognized 
fishing rights'' under the Magnuson-Stevens Act mean ``treaty fishing 
right[s] that [have] been finally approved by the courts under the 
procedures defined in section 19(g) of the final court order under 
United States versus Washington, and the approval is not subject to 
further appeal,'' suggests a narrower definition of federally 
recognized fishing right than defined in the plain language of the 
statute. The quote referred to section 19(g) of the final court order 
under U.S. v. Washington. There is no section 19(g), so the quote 
probably referred to paragraph G of the ``Order for Program to 
Implement Interim Plan'' in U.S. v. Washington, found at 459 F. Supp. 
1035, 1037 (W.D. Wash. 1978), which sets forth a procedure for parties 
in that case to establish treaty entitlement to non-anadromous fish. 
The quote was a statement of one Congressman, not a committee 
interpretation of a legislative provision, and it referred to an 
additional seat on the Pacific Council to be filled by a member 
``appointed from an Indian tribe with federally recognized fishing 
rights from California, Oregon, Washington, or Idaho.  * * *'' 16 
U.S.C. 1852(a)(1)(F). This interpretation does not fit well with the 
actual language used in the statute for three reasons. First, Paragraph 
G only applies in U.S. v. Washington (in which tribes in the State of 
Washington are the only tribal parties whose fishing rights are 
adjudicated). Therefore, no tribe located in Oregon, California, or 
Idaho would be considered a tribe with ``Federally recognized fishing 
rights'' as defined by the quoted statement. This directly conflicts 
with the statutory language that specifically includes tribes from 
these other States. Second, the statute refers to tribes with 
``Federally recognized fishing rights.'' It is clear from other 
applicable law, see Parravano v. Babbitt and Brown and U.S. v. Oregon, 
that there are tribes with federally protected fishing rights that are 
not covered by Paragraph G in U.S. v. Washington. These include the 
treaty tribes that are parties to U.S. v. Oregon, and the Hoopa and 
Yurok tribes in California. Finally, if the Judge in U.S. v. Washington 
has held that a tribe has a federally protected fishing right, and has 
not stayed implementation of that right, the law is binding on the 
United States, even if that issue is on appeal. Therefore, NMFS does 
not agree that the quoted language provides a basis to deny a whiting 
allocation to the Makah tribe.
    Comment 2: Commenters argued the tribal fishery violates the ESA by 
exceeding the level of concern set out in the section 7 consultation on 
the effect of the groundfish fishery on salmon listed under the ESA. 
They also asserted that NMFS combined the tribal and nontribal salmon 
take in order to bring the overall numbers below the standard in the 
biological opinion. They argued that the tribal fishery is distinct in 
terms of geographical, technical, and economic characteristics and that 
under section 3(13) of the Magnuson-Stevens Act, it is a separate 
fishery, and must be ``subject by itself to the ESA biological opinion 
and level of concern.''
    Response: NMFS does not agree with this comment. Under the ESA, 
NMFS consults on the groundfish fishery as a whole, not the different 
segments of the fishery. Nothing in the ESA or the Magnuson-Stevens Act 
requires a different approach. NMFS does not consult separately on the 
open access fishery, the limited entry longline fishery, the limited 
entry non-whiting trawl fishery, the at-sea whiting fishery, the 
shoreside whiting fishery, and the tribal fishery. Similarly, in the 
salmon fishery, NMFS consults on the Council's salmon fishery as a 
whole, not on the various segments of the fishery. In the biological 
opinion for the groundfish fishery, NMFS has set standards for 
different segments of the fishery for monitoring purposes. If one 
segment exceeds the rate of 0.05 chinook salmon/mt whiting and the 
total bycatch in the whiting fishery is expected to exceed 11,000 
chinook salmon, reinitiation of consultation under the ESA would be 
required in order to determine if the new information may affect 
previous conclusions with respect to the impacts of the fishery on 
listed species. Reinitiation of consultation does not mean that 
jeopardy to any listed stock has occurred or is likely to occur. 
Instead, it reevaluates the status of the fishery relative to listed 
species to see if a jeopardy problem exists.
    The bycatch of chinook salmon in the Makah tribal fishery has been 
higher than other sectors of the whiting fishery (see Tables 5A, 5B, 
5C, and 6 of the EA/RIR/IRFA). However, the level of catch is not in 
violation of the ESA. Even though the bycatch rate of chinook salmon in 
the tribal Makah fishery exceeded the other sectors, when combined with 
the entire mothership fishery, the rate remained below the 0.05 rate in 
each of the three years (1996-98) that the tribal fishery operated. 
Also, in each of the three years, fewer than 5,500 chinook salmon were 
taken in the entire Washington, Oregon, and California whiting fishery. 
Consequently, reinitiation of consultation under the ESA was not 
required.
    Comment 3: Commenters argued ``NMFS used the proscriptions in the 
treaty between the United States and the Makah Tribe regarding sale of 
resources to foreign entities as a means to prevent any prospective 
sale of treaty-harvested whale meat to a foreign company.'' The 
commenters argue that NMFS must be consistent and cannot allow the 
tribe to sell whiting to a company that is substantially foreign owned.
    Response: First, the prohibition on sale of whale meat is not aimed 
at foreign trade, it is an absolute prohibition on sale to anyone. It 
is not based on a provision in the Treaty with the Makah, but rather on 
the nature of aboriginal fishing rights under the International Whaling 
Convention. The Treaty with the Makah states the tribe has agreed not 
to trade ``out of the dominions of the United States.'' Sale of whiting 
to a U.S. company, even one with substantial foreign ownership, is not 
trading ``out of the dominions of the United States.''
    Comment 4: Commenters objected to allocation of whiting to the Hoh, 
Quileute, and Quinault tribes because the courts have not adjudicated 
the western boundary of their usual and accustomed fishing areas.
    Response: The only one of these three tribes that had requested an 
allocation for 1999 was the Quileute Tribe. However, the Quileute tribe 
has since advised NMFS it does not plan to harvest whiting in 1999, and 
is not seeking an allocation in 1999. Therefore, in 1999, the only 
tribal allocation of whiting is for the Makah Tribe. For further 
discussion of the tribal usual and accustomed fishing areas see the 
response to comments on the tribal groundfish rule at 61 FR 28786 (June 
6, 1996).

[[Page 27932]]

    Comment 5: One commenter objected to the language in the proposed 
rule because it sounded as though the Council recommended the tribal 
allocation of 35,000 mt.
    Response: At its September and November 1998 meetings, the Council 
proposed a 25,000 mt tribal allocation for 1999, and the tribes 
proposed a framework formula that would have resulted in a tribal 
allocation of 35,000 mt in 1999. The Council then recommended that both 
of these proposals, together ranging from 25,000-35,000 mt, be 
considered at its March 1999 meeting when its final recommendation to 
NMFS would be made. The Council did not endorse the tribal proposal, 
but rather agreed to consider it in March.
    Comment 6: Commenters stated that the allocation of whiting to the 
tribes will have a direct adverse economic impact on individual 
companies and on the communities of Astoria and Newport, Oregon, and 
claimed that NMFS paid no attention to the socioeconomic impacts on 
coastal vessels or communities, and, therefore, violated the standards 
of the Magnuson-Stevens Act.
    Response: NMFS has acknowledged that allocation of whiting to the 
tribes may have adverse economic impacts on certain companies and 
communities. NMFS is prohibited by confidentiality laws from revealing 
the impacts on individual companies even if it had such information. 
However, in the IRFA, NMFS considered the economic impact on small 
entities. The draft EA/RIR also examined impacts on the fishing and 
processing sectors, which have been expanded in the EA/RIR/FRFA. Tables 
3A, 3B, 4A, and 4B compare the tonnage and revenue impacts of the 3 
options (with the final allocation included in Tables 25A and 25B if 
the EA/RIR/FRFA), and Table 17 shows the revenue due to whiting in the 
coastal communities, including Newport and Astoria, Oregon. New Tables 
22-24 have been added to the EA/RIR/FRFA which show the ex-vessel 
revenues for all species in 1991-1998 for the ports in which whiting 
contributed at least 3 percent of the all-species ex-vessel revenue in 
any year from 1996-1998.
    The whiting resource is also allocated among nontribal sectors. 
Forty-two percent of the amount available for nontribal harvest is 
allocated to the shore-based sector. Consequently, the shore-based 
fishery would lose 14,700 mt of whiting under a 35,000-mt tribal 
allocation and 10,500 mt under a 25,000-mt tribal allocation, relative 
to the no-action alternative, as indicated in Table 4A of the EA/RIR/
FRFA. The 10,000-mt difference between a 25,000-mt and 35,000-mt tribal 
allocation represents 4,200 mt of whiting to the shore-based sector (42 
percent of 10,000 mt). A tribal allocation of 35,000 mt in 1999 would 
result in a loss of 4,200 mt to the shore-based sector relative to a 
25,000-mt allocation. (The tribal allocation was 25,000 mt in 1998, but 
both mothership and shore-based sectors exceeded their allocations, so 
comparing likely harvest levels by these sectors in 1999 to actual 
harvest levels in 1998 makes the losses appear larger than if those 
allocations had not been exceeded.) At the March 1999 Council meeting, 
the tribal proposal was reduced to 32,500 mt for 1999, so the loss to 
the shore-based sector from a 32,500-mt tribal allocation compared to a 
25,000-mt tribal allocation in 1999 would be 3,150 mt (42 percent of 
7,500 mt), less than 1.5 percent of the 232,000 mt OY. Diversion of 
3,150 mt of whiting from the shore-based whiting fishery in 1999 may 
result in localized impacts on some coastal communities, particularly 
the 6 nontribal ports with whiting ex-vessel revenues contributing at 
least 3 percent or $100,000 of all species revenue in any 1 year 
between 1996-1998 (Table 17). Because the ports of Newport and Astoria 
process the most whiting relative to the other nontribal ports, they 
may suffer the greatest losses in terms of metric tons and ex-vessel 
revenue. They also may be better able to absorb the loss because they 
also are the two largest coastal ports with respect to ex-vessel 
revenue from all species (EA/RIR/FRFA, new Tables 22-24).
    Comment 7: At the March Council meeting, one individual testified 
that the draft EA/RIR was hastily prepared with no new information, no 
recommendations, and inadequate social and economic impact analyses.
    Response 7: NMFS assures the public that the document was not 
hastily prepared, and was not designed to preselect among the options 
(a tribal allocation between 25,000-35,000 mt), but, rather was 
designed to provide information from which individuals could make up 
their own minds. With the exception of 2 out of more than 20 tables, 
all information was new or updated to reflect the best available 
information. The economic analysis was primarily distributional, as 
data were lacking on which to base a formal cost-benefit analysis. 
Social impacts are extremely difficult to ascertain, particularly when 
analyzing the possible social changes that could occur between 1998 and 
1999 with a redistribution of 3,150 mt, 1.5 percent of the OY, among 
coastal communities. Consistent with preliminary guidance from NMFS, 
the authors appended the draft EA/RIR with the information developed by 
the coastal communities (and provided on the internet) regarding 
employment and demographics.

Nontribal Allocations

    The nontribal whiting allocations are also announced in this rule. 
The percentages used to allocate the commercial OY of whiting among the 
nontribal sectors are found at 50 CFR 660.323(a)(4). The percentages 
are applied to the commercial OY (the OY minus the tribal allocation) 
to determine the 1999 whiting allocations for the catcher/processor, 
mothership, and shore-based sectors.

NMFS Action

    For the reasons stated above, NMFS concurs with the Council's 
recommendations, except for the tribal whiting allocation, and 
announces the following specifications and allocations for the 1999 
whiting fishery, which modify the 1999 annual specifications published 
at 64 FR 1316, January 8, 1999.
    1. In Section I, table 1 (64 FR 1317, January 8, 1999) is amended 
by removing the number ``178,000-'' in the following three places:
    a. In the second column of the table, under the heading, 
``Acceptable Biological Catch (ABC),'' and under the subheadings 
``Vancouver, Columbia, Eureka, Monterey, and Conception,'' on the same 
line with the species ``Pacific whiting.''
    b. Under the same heading, under the subheading ``Total Catch 
ABC'', on the same line with the species ``Pacific whiting.''
    c. In the third column of the table, under the heading ``OY,'' and 
under the subheading, ``Total Catch, ``on the same line with the 
species ``Pacific whiting.''
    2. Footnote d/to table 1 (64 FR 1318, January 8, 1999) is revised 
to read as follows: ``d/Pacific whiting. U.S. ABC is 80 percent of 
U.S.-Canada MSY.'' No other changes are made to Table 1.
    3. In Section IV., under ``B. Limited Entry Fishery'', (64 FR 1337, 
January 8, 1999) paragraph 7(a) regarding nontribal allocations is 
revised to read as follows:
* * * * *
    (7) * * *
    (a) Allocations. The nontribal allocations are harvest guidelines, 
based on percentages that are applied to the commercial OY (see 50 CFR 
660.323(a)(4)), as follows:
    (i) Catcher/processor sector--67,800 mt (34 percent);
    (ii) Mothership sector--47,900 mt (24 percent);

[[Page 27933]]

    (iii) Shore-based sector--83,800 mt (42 percent). No more than 5 
percent (4,200 mt) of the shore-based whiting allocation may be taken 
before the shore-based fishery begins north of 42'' N. lat.
* * * * *
    4. In Section V., paragraph D. regarding the tribal allocation (64 
FR 1340 January 8, 1999) is added to read as follows:

D. Whiting

    The allocation of whiting is 32,500 mt for the Makah tribe.

Classification

    The Administrator, Northwest Region, NMFS determined that this 
action is necessary for the conservation and management of the Pacific 
coast groundfish fishery and that it is consistent with the Magnuson-
Stevens Act and other applicable law.
    These actions are authorized by the regulations implementing the 
FMP at 50 CFR 660.321(b), 660.323(4) and 660.324. The determination to 
take these actions is based on the most recent stock assessment; which 
was not available for consideration by the Council until its March 1999 
meeting. Because of the need for immediate action to implement the new 
ABC and OY near the start of the regular season for the shore-based 
sector in California on April 1, 1999, NMFS has determined in 
accordance with section 553(d)(3) of the Administrative Procedure Act 
that good cause exists for the ABC and OY specifications and 
allocations to the tribal and nontribal sectors to be implemented 
without affording a 30-day delayed effectiveness period.
    NMFS prepared an EA for the tribal allocation and the AA concluded 
that there will be no significant impact on the human environment. At 
issue is the reallocation of whiting from nontribal to tribal 
fisheries, consistent with treaty rights and other applicable law. The 
total amount of whiting that may be harvested is not changed by the 
tribal allocation. A copy of the EA is available from NMFS (see 
ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS prepared an FRFA on the tribal allocation, a summary of which 
follows: (1) A succinct statement of the need for, 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 attachment 3 of this 
FRFA for further citations. (2) A summary of significant issues raised 
by the public comments in response to the IRFA, the agency's response 
to those comments, and a statement of any changes made to the rule as a 
result of the comments: Refer to the preamble of this final rule, which 
includes the public comments and agency responses. (3) A description of 
and, where feasible, an estimate of the number of small entities to 
which the rule will apply, or an explanation of why no such estimate is 
available: The Small Business Administration classifies commercial 
fishing firms as small entities if they have gross receipts of up to $3 
million annually. For processors and wholesalers, a small business is a 
firm that employs less than 500 and 100 employees, respectively. The 
small entities directly affected by the rule are enumerated in the 
following table, and include catcher boats (tribal and nontribal) that 
harvest whiting and deliver either to shore-based processors or to 
mothership processors at sea; and shore-based processors that process 
whiting.

--------------------------------------------------------------------------------------------------------------------------------------------------------
 Small entities using whiting (directly affected by the rule)    Small entities using groundfish, including whiting, that could be affected (directly or
---------------------------------------------------------------                                  indirectly) by the rule
                                                               -----------------------------------------------------------------------------------------
 Limited entry  Tribal catcher    Shore-based                   Limited entry  Limited entry  Total limited      Tribal
 trawl vessels      vessels       processors        Total 1     trawl vessels    fixed gear   entry vessels     catcher      Shore-based      Total 1
                                                                      1           vessels           1           vessels      processors 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
     1, 3 56             1-6              12              74             252            240            492            1-6            169            667
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Excluding 10 catcher-processors over 125 ft (381 km) in length, which are not considered small businesses.
2 Includes processors that paid more than $5,000 for groundfish in the first 9 months of 1998 (using the best available information in December 1998).
3 39 delivered shoreside, 30 delivered to motherships, and 13 did both (1996 data).

(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 additional projected reporting, 
recordkeeping, or compliance requirements in this rule. (5) A 
description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected: Because the tribes have a treaty 
right to harvest whiting, and have indicated that they plan to exercise 
that 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. Three options were under 
consideration in the proposed rule. The no-action alternative (which 
provided no tribal allocation of whiting) is not considered viable by 
NMFS because it is contrary to tribal treaty rights. The other two 
alternatives would have provided the tribes with either 25,000 mt or 
32,500 mt of whiting, the difference between the two being 7,500 mt, 
which is 3 percent of the 232,000-mt OY for 1999. The direct impact of 
this rule on small businesses is largely distributional and diverts 
whiting from nontribal catcher vessels to tribal catcher vessels, all 
of which are considered small businesses. The direct impact on 
nontribal coastal communities (the 5 major ports that receive whiting; 
see Table 24 of the EA/RIR/FRFA) of a 32,500-mt tribal allocation of 
whiting is a loss of 1-2 percent of the ex-vessel revenue (for all 
species) relative to no tribal allocation, and a loss of less than 1 
percent of the ex-vessel revenue (for all species) relative to a 25,000 
mt tribal allocation (which was the amount of the tribal allocation in 
1998). However, this loss in ex-vessel revenue is recovered by the 
tribal coastal community.
    The quantification issue has not yet been litigated or otherwise 
resolved. The Makah have made a proposal for 32,500 mt of whiting in 
1999 that NMFS accepts as a reasonable accommodation of the treaty 
right for 1999 in view of the remaining uncertainty surrounding the 
appropriate quantification. This 1999 amount of 32,500 mt (14 percent 
of the

[[Page 27934]]

232,000-mt OY) is not intended to set a precedent regarding either 
quantification of the Makah treaty right or future allocations. NMFS 
will continue to attempt to negotiate a settlement in U.S. v. 
Washington regarding the appropriate quantification of the treaty right 
to whiting. If an appropriate methodology or allocation cannot be 
developed through negotiations, the allocation will ultimately be 
resolved in the pending subproceeding in U.S. v. Washington. A more 
complete discussion of the treaty right appears in the response to 
comment 1 in the preamble to this rule. A copy of this analysis is 
available from NMFS (see ADDRESSES).
    NMFS issued Biological Opinions (BOs) under the ESA on August 10, 
1990, November 26, 1991, August 28, 1992, September 27, 1993 and May 
14, 1996, pertaining to the impacts of the groundfish fishery on Snake 
River spring/summer chinook, Snake River fall chinook, Sacramento River 
winter chinook, and on Snake River sockeye. The opinions concluded that 
implementation of the FMP for the Pacific Coast Groundfish Fishery is 
not expected to jeopardize the continued existence of any endangered or 
threatened species under the jurisdiction of NMFS, or to result in the 
destruction or adverse modification of critical habitat. This action is 
within the scope of these consultations.
    The August 28, 1992, BO included a review of the anticipated 
impacts to listed salmon species in the whiting fishery. The analysis 
of impacts to listed species in the BO was based on two key 
assumptions, including: (1) An anticipated long-term average catch of 
221,000 mt of whiting per year; and (2) the overall bycatch rate of 
salmon in the fishery (subsequently clarified in the September 27, 
1993, reinitiated consultation to mean chinook salmon) would not exceed 
0.05 chinook salmon/mt of whiting. Impacts to listed fish were analyzed 
assuming that the bycatch of salmon (assumed to be all chinook) would 
not exceed 11,000 salmon in the entire whiting fishery (221,000  x  
0.05 = 11,050). Allocating a portion of the OY (sometimes called TAC, 
or total allowable catch) to the Washington Coast treaty tribes would 
not result in an increased catch of whiting, but may result in more 
fishing to the north because of the geographical limitation on the 
tribal fishing area. However, the fishery has been broadly distributed 
with much of it already occurring in the north in recent years. The BO 
assumed that most of the whiting fishery would occur in the northern 
Columbia and Vancouver areas and specifically considered the 
possibility that all of the fishery would occur to the north. The 
Incidental Take Statement of the August 28, 1992, BO (as revised in 
1993) defined a bycatch rate limit of 0.05 chinook salmon/mt whiting 
with an expectation that the catch would not exceed 11,000 chinook 
salmon in the entire whiting fishery. The tribal allocation action does 
not affect the assumptions of the analysis and is not outside the scope 
of the action considered in the opinion. Because the impacts of this 
action fall within the scope of the impacts considered in these BOs, 
additional consultations on these species are not required for this 
action.
    Since the last BO, additional species have been listed under the 
ESA, including: Coho salmon as threatened (Oregon coast/southern 
Oregon-northern California/central California); chinook salmon as 
threatened (Puget Sound/lower Columbia River/upper Willamette River) 
and endangered (upper Columbia River); chum salmon as threatened (Hood 
Canal/Columbia River); sockeye salmon threatened (Ozette Lake); 
steelhead as threatened (middle and lower Columbia River/Snake River 
Basin/upper Willamette River/central California/south-central 
California) and endangered (upper Columbia River/southern California); 
and Umpqua River cutthroat trout as endangered.
    NMFS intends to reinitiate consultation on the Pacific coast 
groundfish fishery to consider its effect on newly listed species. 
Review of the available information indicates that these fisheries are 
not likely to affect listed coho, chum, sockeye, steelhead, or 
cutthroat trout, as these species are rarely, if ever, encountered in 
the groundfish fishery. Four chinook salmon evolutionarily significant 
units (ESUs) have recently been listed as threatened or endangered 
under the ESA; listings for those ESUs are effective on May 24, 1999. 
Chinook salmon are caught incidentally to some of the groundfish net 
fisheries, and those fisheries may take chinook salmon from some of the 
newly listed runs. However, all four of the newly listed chinook ESUs 
are north or far-north migrating species, which greatly limits the 
potential for take in the groundfish fisheries. Therefore, NMFS does 
not believe that management constraints for the groundfish fisheries 
are necessary or appropriate at this time. NMFS will provide more 
detailed accounts of the anticipated take of chinook by ESU in the 
reinitiated consultation.

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

    Dated: May 18, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-13037 Filed 5-19-99; 3:05 pm]
BILLING CODE 3510-22-P