[Federal Register Volume 75, Number 48 (Friday, March 12, 2010)]
[Proposed Rules]
[Pages 11829-11833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5479]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 100122041-0118-01]
RIN 0648-AY59


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; 2010 Tribal Fishery for Pacific 
Whiting

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  This proposed rule is issued consistent with a regulatory 
framework that was established in 1996 to implement the Washington 
coastal treaty Indian tribes' rights to harvest Pacific Coast 
groundfish. Washington coastal treaty Indian tribes mean the Hoh, 
Makah, and Quileute Indian Tribes and the Quinault Indian Nation. The

[[Page 11830]]

Makah and Quileute Tribes have expressed their intent to participate in 
the 2010 Pacific whiting fishery. This proposed rule establishes an 
interim formula for setting the tribal allocation of Pacific whiting 
for the 2010 season only, based on discussions with the Makah and 
Quileute tribes regarding their fishing plans.

DATES: Comments on this proposed rule must be received no later than 5 
p.m., local time on April 2, 2010.

ADDRESSES: You may submit comments, identified by RIN 0648-AY59 by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Fax: 206-526-6736, Attn: Kevin C. Duffy
     Mail: Barry A. Thom, Acting Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, 
Attn: Kevin C. Duffy.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you with to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Kevin C. Duffy (Northwest Region, 
NMFS), phone: 206-526-4743, fax: 206-526-6736 and e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is accessible via the Internet at the Office of 
the Federal Register's Website at http://www.gpoaccess.gov/fr/index.html. Background information and documents are available at the 
Pacific Fishery Management Council's website at http://www.pcouncil.org/.

Background

    The regulations at 50 CFR 660.324(d) establish the process by which 
the tribes with treaty fishing rights in the area covered by the 
Pacific Coast Groundfish Fishery Management Plan (FMP) can request new 
allocations or regulations specific to the tribes during the biennial 
harvest specifications and management measures process. These requests 
must be made in writing. The regulations also state ``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.'' These procedures employed by NOAA in implementing 
tribal treaty rights under the FMP, in place since May 31, 1996, were 
designed to provide a framework process by which NOAA Fisheries can 
accommodate tribal treaty rights by setting aside appropriate amounts 
of fish in conjunction with the Pacific Fishery Management Council's 
(Council) process for determining harvest specifications and management 
measures. The Council's groundfish fisheries require a high degree of 
coordination among the tribal, state, and federal co-managers in order 
to rebuild overfished species and prevent overfishing, while allowing 
fishermen opportunities to sustainably harvest over 90 species of 
groundfish managed under the FMP.
    Since 1996, NMFS has been allocating a portion of the U.S. Optimum 
Yield (OY) of Pacific whiting to the tribal fishery following the 
process established in 50 CFR 660.324(d). The tribal allocation is 
subtracted from the total U.S. whiting OY before it is allocated to the 
non-tribal sectors.
    To date, only the Makah Tribe has prosecuted a tribal fishery for 
Pacific whiting. The Makah Tribe has annually harvested a whiting 
allocation since 1996 using midwater trawl gear. Since 1999, the tribal 
allocation has been based on a statement of need for their tribal 
fishery. In recent years, the specific tribal amount has been 
determined using a sliding scale relative to the U.S. whiting OY of 
between 14 and 17.5 percent, depending on the specific OY determined by 
the Council. In general, years with a relatively low OY result in a 
tribal allocation closer to 17.5 percent, and years with a relatively 
high OY result in a tribal allocation closer to 13 percent.
    Allocations of Pacific whiting to treaty Indian tribes on the coast 
of Washington have varied between 25,000 mt and 35,000 mt for the years 
2000-2005. In 2000, with a U.S. OY of 232,000 mt, 32,500 mt of whiting 
was set aside for treaty Indian tribes on the coast of Washington 
State. In 2001 and 2002, the U.S. OY declined to 190,400 mt and 129,600 
mt, respectively, and the tribal allocations for those years were also 
lower: 27,500 mt and 22,680 mt, respectively. In 2003, with a U.S. OY 
of 148,200 mt, the tribal allocation was 25,000 mt. In 2004, the U.S. 
OY was 250,000 mt with a tribal allocation of 32,500 mt. In 2005, the 
U.S. OY of 269,069 had a corresponding tribal allocation of 35,000 mt. 
In 2006, the U.S. OY of 269,069 mt resulted in a tribal allocation of 
32,500 mt. In 2007, the U.S. OY of 242,591 mt had a corresponding 
tribal allocation of 35,000 mt. In 2008, the U.S. OY of 269,545 mt 
resulted in a tribal allocation of 35,000 mt.
    For the 2009-2010 harvest specification biennial cycle, three of 
the four coastal tribes indicated their intent to participate in the 
whiting fishery at some point during this two-year period. The Quinault 
Nation indicated their intent to start fishing in 2010, and both the 
Quileute and Makah Tribes indicated they intended to fish in both 2009 
and 2010. All three tribes notified NOAA Fisheries of their intent to 
participate in the whiting fishery during the November 2007 Council 
meeting, and subsequently followed up with written requests for 
allocations pursuant to 50 CFR 660.324(d) prior to the March 8-14, 2008 
Council meeting.
    After the initial tribal requests were received, several meetings 
and discussions took place between the tribal, state, and federal co-
managers. These meetings resulted in an understanding by NOAA and the 
State of Washington that a tribal allocation of 50,000 mt in 2009 would 
satisfy the needs expressed by the Quileute and the Makah. This 
allocation was based on the separate requests of the Quileute for up to 
8,000 mt in 2009, and the Makah for up to 42,000 mt in 2009, for a 
total of 50,000 mt.
    Based on the requests received from the Tribes during the schedule 
specified in 50 CFR 660.324, the Council recommended a tribal set-aside 
of 50,000 mt for 2009 only, with the Makah Tribe to manage 42,000 mt, 
including the bycatch amounts associated with this portion of the set-
aside, and the Quileute Tribe to manage 8,000 mt, including the bycatch 
amounts associated with this portion of the set-aside. The Council also 
requested that NOAA Fisheries convene the co-managers, including the 
states of Oregon and Washington, and the Washington coastal treaty 
tribes, in government to government discussions to develop a proposal 
for 2010 and beyond for tribal set-asides of Pacific Whiting.
    In accordance with this recommendation, NOAA Fisheries established 
an overall Tribal set-aside of 50,000 mt for 2009, on March 6, 2009

[[Page 11831]]

(74 FR 9874). Further, NOAA Fisheries established interim individual 
Tribal set-asides for the Quileute and Makah Tribes in the amounts of 
8,000 mt and 42,000 mt, respectively, which represented the amounts 
requested or agreed upon at the time the shares of the 2009 fishery 
were being established by the Council in accordance with the procedures 
set forth in 50 CFR 660.324. These interim individual Tribal set-asides 
for 2009 only were not in any manner to be considered a determination 
of treaty rights to the harvest of Pacific whiting for use in future 
fishing seasons, nor did they set precedent for individual Tribal 
allocations of the Pacific whiting resource. Rather, the amounts set 
aside for each tribe for 2009 were based on the timely requests from 
the tribes at the June Council meeting. Only the Makah engaged in a 
tribal whiting fishery in 2009.
    Following the Council's direction, in 2008 NMFS and the co-managers 
also began the process to determine the long-term tribal allocation for 
whiting. At the September 2008 Council meeting, NOAA, the states and 
the Quinault, Quileute, and Makah tribes met and agreed on a process in 
which NOAA would pull together the current information regarding 
whiting, circulate it among the co-managers, seek comment on the 
information and possible analyses, and then prepare analyses of the 
information to be used by the co-managers in developing a tribal 
allocation for use in 2010 and beyond. The goal was agreement among the 
co-managers on a total tribal allocation for incorporation into the 
Council's planning process for the 2010 season. An additional goal was 
to provide the tribes sufficient time and information to develop an 
inter-tribal allocation or other necessary management agreement. This 
process has been moving forward. In 2009, NMFS shared a preliminary 
report summarizing scientific information available on the migration 
and distribution of Pacific whiting on the west coast. The co-managers 
have met to discuss this information and plan further meetings. 
However, due to the detailed nature of this evaluation of the 
scientific information, and the need to negotiate a long-term tribal 
allocation following completion of the evaluation, the process was not 
completed in time for the 2010 Pacific whiting fishery.

Tribal Allocation for 2010

    Both the Makah and Quileute have stated their intent to participate 
in the whiting fishery in 2010. The Quinault Nation has indicated that 
they plan to participate in the 2011 fishery, but not the 2010 fishery. 
Because the development of scientific information needed by the co-
managers to negotiate a long term tribal allocation is not yet 
complete, NOAA Fisheries is moving forward with this proposed rule as 
an interim measure to address the allocation for and management of the 
2010 tribal Pacific whiting fishery. As with the 2009 allocation, this 
proposed rule is not intended to establish any precedent for future 
whiting seasons or for the long-term tribal allocation of whiting.
    The proposed rule would be implemented under authority of section 
305(d) of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), 1801 et seq, which makes the Secretary 
responsible for ``carrying out any fishery management plan or amendment 
approved or prepared by him, in accordance with the provisions of this 
Act.'' With this proposed rule, NMFS, acting on behalf of the 
Secretary, would ensure that the FMP is implemented in a manner 
consistent with treaty rights of four Northwest tribes to fish in their 
``usual and accustomed grounds and stations'' in common with non-tribal 
citizens. Washington v. Washington State Commercial Passenger Fishing 
Vessel Ass'n, 443 U.S. 658, 674 (1979).
    NMFS' proposed formula for determining the 2010 tribal allocation 
of whiting is based on discussions with the Makah and Quileute Tribes 
regarding their intent and needs for the 2010 fishing season, and on 
NMFS' preliminary review of the range of potential total tribal 
allocation suggested by current scientific information. The specific 
tribal allocation depends on the amount of the U.S. OY, which will be 
determined by the Pacific Fishery Management Council at their March 
2010 meeting, based on an updated stock assessment. To accommodate the 
possibility that the U.S. OY of whiting might be different than in 
2009, NMFS is proposing an approach for determining the 2010 tribal 
allocation that can account for a range of potential OYs. The Makah 
Tribe has requested the opportunity to harvest up to 17.5 percent of 
the U.S. OY of whiting in 2010. The Quileute Tribe has stated that it 
plans to have two boats participating in the 2010 fishery, and that it 
believes that 8,000 mt of whiting are necessary to ensure the economic 
viability of one boat. NMFS therefore proposes that the tribal 
allocation for 2010 be [17.5 percent * (U.S. OY)] + 16,000 mt. Assuming 
an OY similar to the 2009 OY, the tribal allocation under this approach 
would be 39,789 mt (29 percent of the OY). The highest OY in the last 
five years was 269,545 mt. At this level, the tribal allocation would 
be 63,170 mt (23 percent of the OY).
    In its proposed rule regarding the 2009 tribal whiting allocation, 
NOAA Fisheries stated that it believed the 50,000 mt interim set aside 
for that year, although higher than the prior tribal set asides, is 
still clearly within the tribal treaty right to Pacific whiting. As 
described above, while further review of scientific information will 
occur in 2010, NMFS believes that current knowledge on the distribution 
and abundance of the coastal Pacific whiting stock reveals that the 
range of percentages of the OY proposed here lies within the range of 
tribal treaty rights to Pacific whiting.

Reapportionment

    In addition to discussing the overall tribal allocation for the 
2010 tribal whiting fishery, NMFS and the tribes discussed the issue of 
reapportionment of whiting from the tribal fishery to the non-tribal 
fishery. In this proposed rule, NMFS reasserts its regulatory authority 
to reapportion whiting from the tribal to the non-tribal fishery, 
consistent with 50 CFR 660 323(c).
    NMFS currently has the authority to reapportion whiting between the 
non-tribal and tribal fisheries on an annual basis. This authority has 
been used in two instances: January 11, 2001 (66 FR 48370); and May 5, 
2009 (74 FR 20620). However, during discussion between the tribes in 
2009, the tribes lacked a consensus position on this issue. The 
Quileute and Quinault tribal fishery managers stated their belief that 
NMFS does not have authority to reapportion whiting to the non-tribal 
fishery, while the Makah tribal fishery managers stated their belief 
that NMFS does have the authority to do so. NMFS had hoped to come to 
consensus on this issue in advance of the March 2010 Council meeting, 
but was unable to do so. NMFS maintains that it currently has the 
regulatory authority to reapportion Pacific whiting, consistent with 50 
CFR 660.323(c).
    For 2010, the Regional Administrator will coordinate with the 
affected tribe(s) before any decisions are made on reapportionment of 
any portion of the tribal allocation of whiting.

Classification

    At this time, NMFS has preliminarily determined that the management 
measures for the 2010 Pacific whiting tribal fishery are consistent 
with the national standards of the Magnuson-Stevens Act and other 
applicable laws. In making the final determination,

[[Page 11832]]

NMFS will take into account the data, views, and comments received 
during the comment period.
    NMFS has initially determined that this proposed rule is not 
significant for purposes of Executive Order 12866.
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 600 et seq. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A summary of the 
analysis follows. A copy of this analysis is available from NMFS (see 
ADDRESSES).
    Under the RFA, the term ``small entities'' includes small 
businesses, small organizations, and small governmental jurisdictions. 
The Small Business Administration has established size criteria for all 
major industry sectors in the US, including fish harvesting and fish 
processing businesses. A business involved in fish harvesting is a 
small business if it is independently owned and operated and not 
dominant in its field of operation (including its affiliates), and if 
it has combined annual receipts not in excess of $4.0 million for all 
its affiliated operations worldwide. A seafood processor is a small 
business if it is independently owned and operated, not dominant in its 
field of operation, and employs 500 or fewer persons on a full-time, 
part-time, temporary, or other basis, at all its affiliated operations 
worldwide. A business involved in both the harvesting and processing of 
seafood products is a small business if it meets the $4.0 million 
criterion for fish harvesting operations. A wholesale business 
servicing the fishing industry is a small business if it employs 100 or 
fewer persons on a full-time, part-time, temporary, or other basis, at 
all its affiliated operations worldwide. For marinas and charter/party 
boats, a small business is one with annual receipts not in excess of 
$7.0 million. The RFA defines ``small organizations'' as any nonprofit 
enterprise that is independently owned and operated and is not dominant 
in its field. The RFA defines small governmental jurisdictions as 
governments of cities, counties, towns, townships, villages, school 
districts, or special districts with populations of less than 50,000.
    In recent years the number of participants engaged in the Pacific 
whiting fishery has varied with changes in the whiting OY and economic 
conditions. Pacific whiting shoreside vessels (26 to 29), mothership 
processors (4 to 6), mothership catcher vessels (11 20), catcher/
processors (5 to 9), Pacific whiting shoreside first receivers (8 16), 
and four tribal trawlers are the major units of this fishery. For 2010, 
an additional two tribal trawlers are expected to enter the fishery.
    NMFS' records suggest the gross annual revenue for each of the 
catcher/processor and mothership operations operating off the coasts of 
Washington, Oregon, and California exceeds $4,000,000. Therefore, they 
are not considered small businesses. NMFS' records also show that 10 43 
catcher vessels have taken part in the mothership fishery yearly since 
1994. These companies are all assumed to be small businesses (although 
some of these vessels may be affiliated to larger processing 
companies). Since 1994, 26 31 catcher vessels participated in the 
shoreside fishery annually. These companies are all assumed to be small 
businesses (although some of these vessels may be affiliated to larger 
processing companies). Tribal trawlers are presumed to be small 
entities whereas the Tribes are presumed to be small government 
jurisdictions.
    Pacific whiting has grown in importance, especially in recent 
years. Through the 1990s, the volume of Pacific whiting landed in the 
fishery increased. In 2002 and 2003, landings of Pacific whiting 
declined due to information showing the stock was depleted and the 
subsequent regulations that restricted harvest in order to rebuild the 
species. Over the years 2003 2007 estimated Pacific whiting ex-vessel 
values averaged about $29 million. In 2008, these participants 
harvested about 248,000 mt of whiting worth about $63 million in ex-
vessel value based on shoreside ex-vessel prices of $254 per ton the 
highest ex-vessel revenues and prices on record. In comparison, the 
2007 fishery harvested about 224,000 mt worth $36 million at an average 
ex-vessel price of about $160 per mt. Preliminary estimates of the 2009 
fishery indicate that the tribal and non-tribal fleets harvested about 
120,000 tons of whiting worth about $15 million. During 2009, ex-vessel 
prices declined to about $119 per mt, presumably due to the worldwide 
recession.
    Relative to the 2009 allocation of 50,000 mt, the proposed Pacific 
whiting allocation for treaty Indian tribes ranges from a decrease of 
10,211 mt (50,000 mt minus 39,789 mt) to an increase of 13,170 mt 
(63,170 mt minus 50,000 mt). In terms of the average 2009 ex-vessel 
price of $119 per mt, the proposed allocation of whiting to tribes 
ranges from a decrease of $1.2 million to an increase of $1.6 million 
with the 2009 initial allocation of 50,000 mt. Compared to the actual 
2009 harvest of 20,446 mt and estimated ex-vessel tribal revenue of 
$2.4 million, on the low end, if the tribal allocation of 37,789 mt is 
harvested, tribal revenues would reach $4.5 million, or an increase of 
$2.3 million. On the high end, if the tribal allocation of 63,170 mt is 
harvested, tribal revenues would reach $7.5 million, an increase of 
$5.1 million.
    Tribal fisheries are a mixture of the similar activities that non-
tribal fisheries undertake as the tribal harvest will go shoreside for 
processing or to a mothership for at-sea processing. The processing 
facilities that the tribes use also process fish harvested by non-
tribal fisheries. This rule directly regulates what entities can 
harvest whiting. Increased allocations to tribal harvesters (harvest 
vessels are small entities, tribes are small jurisdictions) implies 
decreased allocations to non-tribal harvesters (a mixture of small and 
large businesses). Note that in the instance where, by September 15, it 
is determined that some proportion of the whiting allocation to the 
tribal fishery is projected not to be harvested, the Regional 
Administrator may reapportion to the non-tribal whiting fishery.
    There are no reporting, recordkeeping or other compliance 
requirements in the proposed rule.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action. This rule does not contain policies with 
federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 13132.
    NMFS issued Biological Opinions under the Endangered Species Act 
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 
27, 1993, May 14, 1996, and December 15, 1999, pertaining to the 
effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon 
(Puget Sound, Snake River spring/summer, Snake River fall, upper 
Columbia River spring, lower Columbia River, upper Willamette River, 
Sacramento River winter, Central Valley spring, California coastal), 
coho salmon (Central California coastal, southern Oregon/northern 
California coastal), chum salmon (Hood Canal summer, Columbia River), 
sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle 
and lower Columbia River, Snake River Basin, upper Willamette River, 
central California coast, California Central Valley, south/central 
California, northern California, southern California). These biological 
opinions have 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

[[Page 11833]]

jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.
    In 2005 NMFS reinitiated a formal section 7 consultation under the 
ESA for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999, Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000 fish Chinook incidental take threshold was exceeded, triggering 
re-initiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to complete an 
analysis of salmon take in the bottom trawl fishery.
    NMFS prepared a Supplemental Biological Opinion dated March 11, 
2006, which addressed salmon take in both the Pacific whiting midwater 
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental 
Biological Opinion, NMFS concluded that catch rates of salmon in the 
2005 whiting fishery were consistent with expectations considered 
during prior consultations. Chinook bycatch has averaged about 7,300 
fish over the last 15 years and has only occasionally exceeded the 
reinitiation trigger of 11,000 fish.
    Since 1999, when NMFS issued its previous opinion establishing the 
11,000 fish threshold, annual Chinook bycatch has averaged about 8,450 
fish. The Chinook Environmentally Significant Units (ESUs) most likely 
affected by the whiting fishery have generally improved in status since 
the 1999 Section 7 consultation. Although these species remain at risk, 
as indicated by their ESA listing, NMFS concluded that the higher 
observed bycatch in 2005 does not require a reconsideration of its 
prior ``no jeopardy'' conclusion with respect to the fishery. For the 
groundfish bottom trawl fishery, NMFS concluded that incidental take in 
the groundfish fisheries is within the overall limits articulated in 
the Incidental Take Statement of the 1999 Biological Opinion. The 
groundfish bottom trawl limit from that opinion was 9,000 fish 
annually. NMFS will continue to monitor and collect data to analyze 
take levels. NMFS also reaffirmed its prior determination that 
implementation of the Groundfish FMP is not likely to jeopardize the 
continued existence of any of the affected ESUs.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) were 
recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) 
were recently relisted as threatened under the ESA. The 1999 biological 
opinion for salmonids concluded that the bycatch of these species in 
the Pacific whiting fishery were almost entirely Chinook salmon, with 
little or no bycatch of coho, chum, sockeye, and steelhead. The 
Southern Distinct Population Segment (DPS) of green sturgeon (71 FR 
17757, April 7, 2006) were also recently listed as threatened under the 
ESA. As a consequence, NMFS has reinitiated its section 7 consultation 
on the Council's Groundfish FMP.
    After reviewing the available information, NMFS concluded that, in 
keeping with sections 7(a) (2) and 7(d) of the ESA, the proposed action 
would not result in any irreversible or irretrievable commitment of 
resources that would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.
    With regard to marine mammals, sea turtles, and seabirds, NMFS is 
reviewing the available data on fishery interactions and have entered 
into pre-consultation with the United States Fish and Wildlife Service, 
NMFS and other Federal agencies. In addition, NMFS has begun 
discussions with Council staff on the process to address the concerns, 
if any, that arise from our review of the data.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the FMP. Under the Magnuson-Stevens Act, 16 
U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
must be a representative of an Indian tribe with federally recognized 
fishing rights from the area of the Council's jurisdiction.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: March 9, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES

    1. The authority citation for part 660 is revised to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.
    2. In Sec.  660.385 paragraph (e) is revised to read as follows:


Sec.  660.385  Washington coastal tribal fisheries management measures.

* * * * *
    (e) Pacific whiting. The tribal allocation for 2010 will be 
calculated using the following formula: total tribal allocation = [17.5 
percent * (U.S. OY)] + 16,000 mt.
* * * * *
[FR Doc. 2010-5479 Filed 3-11-10; 8:45 am]
BILLING CODE 3510-22-S