28786 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations

(1) The design pressure of the weakest

element in the segment, determined in

accordance with subparts C and D of

this part. However, for steel pipe in

pipelines being converted under

§ 192.14 or uprated under subpart K of

this part, if any variable necessary to

determine the design pressure under the

design formula (§ 192.105) is unknown,

one of the following pressures is to be

used as design pressure:

(i) Eighty percent of the first test

pressure that produces yield under

section N5.0 of Appendix N of ASME

B31.8, reduced by the appropriate factor

in paragraph (a)(2)(ii) of this section; or

(ii) If the pipe is 324 mm (123⁄4 in) or

less in outside diameter and is not

tested to yield under this paragraph,

1379 kPa (200 psig).

* * * * *

32. Section 192.625 (f) is revised to

read as follows:

§ 192.625 Odorization of gas.

* * * * *

(f) Each operator shall conduct

periodic sampling of combustible gases

to assure the proper concentration of

odorant in accordance with this section.

Operators of master meter systems may

comply with this requirement by—

(1) Receiving written verification from

their gas source that the gas has the

proper concentration of odorant; and

(2) Conducting periodic ‘‘sniff’’ tests

at the extremities of the system to

confirm that the gas contains odorant.

33. Section 192.705(c) is added to

read as follows:

§ 192.705 Transmission lines: Patrolling.

* * * * *

(c) Methods of patrolling include

walking, driving, flying or other

appropriate means of traversing the

right-of-way.

34. Section 192.709 is revised to read

as follows:

§ 192.709 Transmission lines: Record

keeping.

Each operator shall maintain the

following records for transmission lines

for the periods specified:

(a) The date, location, and description

of each repair made to pipe (including

pipe-to-pipe connections) must be

retained for as long as the pipe remains

in service.

(b) The date, location, and description

of each repair made to parts of the

pipeline system other than pipe must be

retained for at least 5 years. However,

repairs generated by patrols, surveys,

inspections, or tests required by

subparts L and M of this part must be

retained in accordance with paragraph

(c) of this section.

(c) A record of each patrol, survey,

inspection, and test required by

subparts L and M of this part must be

retained for at least 5 years or until the

next patrol, survey, inspection, or test is

completed, whichever is longer.

35. Section 192.721(b) is revised to

read as follows:

§ 192.721 Distribution systems: Patrolling.

* * * * *

(b) Mains in places or on structures

where anticipated physical movement

or external loading could cause failure

or leakage must be patrolled—

(1) In business districts, at intervals

not exceeding 41⁄2 months, but at least

four times each calendar year; and

(2) Outside business districts, at

intervals not exceeding 71⁄2 months, but

at least twice each calendar year.

36. In Appendix A, section I. is

amended by redesignating subsections

A. through F. as subsections B. through

G., respectively, and by adding a new

subsection A.; and section II. is

amended by redesignating subsections

A. through E. as subsections B. through

F., respectively, by adding a new

subsection A. and a new subsection 12.

to newly designated C., by redesignating

newly designated subsections D.3.

through D.5. as subsections D.5. through

D.7., respectively, and by adding new

subsections D.3. and D.4. as follows:

Appendix A—Incorporated by

Reference

I. * * *

A. American Gas Association (AGA), 1515

Wilson Boulevard, Arlington, VA 22209.

* * * * *

II. * * *

A. American Gas Association (AGA):

1. AGA Pipeline Research Committee,

Project PR–3–805, ‘‘A Modified Criterion for

Evaluating the Remaining Strength of

Corroded Pipe’’ (December 22, 1989).

* * * * *

C. * * *

12. ASTM Designation: F1055 ‘‘Standard

Specification for Electrofusion Type

Polyethylene Fittings for Outside Diameter

Controlled Polyethylene Pipe and Tubing’’

(F1055–95).

D. * * *

3. ASME/ANSI B31G ‘‘Manual for

Determining the Remaining Strength of

Corroded Pipelines’’ (1991).

4. ASME/ANSI B31.8 ‘‘Gas Transmission

and Distribution Piping Systems’’ (1995).

* * * * *

Issued in Washington, DC, on May 28,

1996.

D.K. Sharma,

Administrator.

[FR Doc. 96–13787 Filed 6–5–96; 8:45 am]

BILLING CODE 4910–60–P

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.

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,
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations 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 nontribal 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 nontreaty fisheries; the whiting allocation

regulations at § 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 § 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-andline 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 biomassbased 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,
28788 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations

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 treatyright 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
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations 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
28790 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations

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
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations 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 FederalTribal consensus process in the

implementation of all treaty allocations or

regulations.

NMFS has revised paragraph (d) of

§ 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:

§ 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

§ 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 § 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
28792 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations

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 nontreaty 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
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations 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 nonIndian 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 nonIndian 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 nonwhiting 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
28794 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations

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 trawltrip 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 § 663.2 the definition for

‘‘commercial harvest guideline or

commercial quota’’ is added, in

alphabetical order, to read as follows:

§ 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 § 663.7, paragraphs (n) and (o)

are revised to read as follows:

§ 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

§ 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

§ 663.24; when taking and retention is

prohibited under § 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 § 663.23, paragraphs (b)(1) and

(b)(4)(i) through (b)(4)(iv) are revised to

read as follows:

§ 663.23 Catch restrictions.

* * * * *

(b) * * *

(1) Black rockfish. The trip limit for

black rockfish (Sebastes melanops) for

commercial fishing vessels using hookand-line gear between the U.S.-
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations 28795

Canadian border and Cape Alava

(48°09′30′′ N. lat.), and between

Destruction Island (47°40′00′′ N. lat.)

and Leadbetter Point (46°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 § 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:

§ 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°02′15′′ N. lat. (Norwegian

Memorial) and east of 125°44′00′′ W.

long.

(2) Quileute—That portion of the

FMA between 48°07′36′′ N. lat. (Sand

Point) and 47°31′42′′ N. lat.(Queets

River) and east of 125°44′00′′ W. long.

(3) Hoh—That portion of the FMA

between 47°54′18′′ N. lat. (Quillayute

River) and 47°21′00′′ N. lat. (Quinault

River) and east of 125°44′00′′ W. long.

(4) Quinault—That portion of the

FMA between 47°40′06′′ N. lat.

(Destruction Island) and 46°53′18′′ N.

lat. (Point Chehalis) and east of

125°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°09′30′′ N. lat.) and

between Destruction Island (47°40′00′′

N. lat.) and Leadbetter Point (46°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
28796 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Rules and Regulations

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 § 663.24.

* * * * *

[FR Doc. 96–14141 Filed 5–31–96; 4:42 pm]

BILLING CODE 3510–22–P

50 CFR Part 663

[Docket No. 951227306–6117–02; I.D.

053096A]

Pacific Coast Groundfish Fishery;

Whiting At-Sea Processing

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Fishing restrictions.

SUMMARY: NMFS announces the

prohibition of further processing at sea

of Pacific whiting at 1200 hours (local

time) on June 1, 1996, based on its

projection that 60 percent (118,200

metric tons (mt)) of the 1996

commercial harvest guideline for Pacific

whiting will have been harvested by

that time. This action is authorized by

the Pacific Coast Groundfish Fishery

Management Plan and is necessary to

provide adequate amounts of whiting

for shoreside processors and to achieve

the allocations adopted for 1996.

EFFECTIVE DATE: May 31, 1996, through

2400 hours (local time) May 14, 1997.

ADDRESSES: Submit comments to

William Stelle, Jr., Director, Northwest

Region, National Marine Fisheries

Service, 7600 Sand Point Way NE., BINC15700, Seattle, WA 98115–0070.

FOR FURTHER INFORMATION CONTACT:

William L. Robinson at 206–526–6140.

SUPPLEMENTARY INFORMATION: On April

13, 1994, NMFS issued regulations (59

FR 17491) to allocate annually the U.S.

Pacific whiting harvest guideline in the

years 1994 through 1996 between

fishing vessels that either catch and

process at sea or catch and deliver to atsea processors (the at-sea sector) and

fishing vessels that catch and deliver to

processors located on shore (the shorebased sector). In each year, after 60

percent of the annual harvest guideline

(or quota) for Pacific whiting has been

or is projected to be taken, further at-sea

processing of Pacific whiting in the

exclusive economic zone is prohibited.

This provision was modified in 1996 by

a rule that established a framework to

implement the Washington coastal

Indian tribes’ treaty rights to harvest

Pacific groundfish. That rule also

allocated 15,000 mt of whiting to the

Makah Indian Tribe for 1996. The tribal

allocation is subtracted from the harvest

guideline to derive the ‘‘commercial

harvest guideline.’’ When 60 percent of

the commercial harvest guideline is

projected to be taken (by both at-sea and

shore-based sectors), at-sea processing

of whiting is prohibited. The remaining

40 percent of the commercial harvest

guideline is reserved initially for harvest

by vessels delivering to shore-based

processors. The regulations require that

the Assistant Administrator for

Fisheries, NOAA, announce in the

Federal Register when 60 percent of the

commercial harvest guideline 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 most recent catch data available

on May 31, 1996, indicate that

approximately 96,000 mt of Pacific

whiting have been harvested through

May 28, 1996, and 60 percent (118,200

mt) of the 197,000–mt commercial

harvest guideline for Pacific whiting is

projected to be reached by 1200 hours

(local time) on June 1, 1996.

Secretarial Action

For the reasons given above, and in

accordance with 50 CFR 663.23(b)(4)(i)

and (iv), after 1200 hours (local time) on

June 1, 1996, at-sea processing of Pacific

whiting is prohibited (except for Pacific

whiting that was on board the

processing vessel prior to that time), and

the taking and retaining, or receiving

(except as cargo) of Pacific whiting by

a vessel in the fishery management area

with processed whiting on board is

prohibited. Any vessel used to fish for

whiting for processing at sea must have

its trawl doors on board and attached to

the trawl (50 CFR 663.7(o)).

Classification

The determination that 60 percent of

the commercial harvest guideline is

about to be harvested is based on the

most recent data available. The

aggregate data upon which the

determination is based are available for

public inspection at the Office of the

Director, Northwest Region (see

ADDRESSES) during business hours. This

action is taken under the authority of 50

CFR 663.23 (b)(4)(i), and is exempt from

review under E.O. 12866.

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

Dated: May 31, 1996.

Richard W. Surdi,

Acting Director, Office of Fisheries

Conservation and Management, National

Marine Fisheries Service.

[FR Doc. 96–14148 Filed 5–31–96; 3:49 pm]

BILLING CODE 3510–22–F