81 FR 36806 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Tribal Usual and Accustomed Fishing Areas

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 110 (June 8, 2016)

This final rule implements the decision in United States v. Washington, 2:09-sp-00001-RSM, (W.D. Wash. Sept. 3, 2015) (Amended Order Regarding Boundaries of Quinault & Quileute U&As), which set forth certain boundaries of the usual and accustomed (U&A) fishing areas in the Pacific Ocean of the Quileute Nation (Quileute) and Quinault Indian Nation (Quinault). This action also includes related changes to NMFS regulations to provide consistency for tribal U&A fishing area boundaries across all fisheries managed by NMFS under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).

[Federal Register Volume 81, Number 110 (Wednesday, June 8, 2016)]
[Rules and Regulations]
[Pages 36806-36808]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-13469]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 160303183-6183-01]
RIN 0648-BF58


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Tribal Usual and Accustomed Fishing Areas

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

ACTION: Final rule.

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SUMMARY: This final rule implements the decision in United States v. 
Washington, 2:09-sp-00001-RSM, (W.D. Wash. Sept. 3, 2015) (Amended 
Order Regarding Boundaries of Quinault & Quileute U&As), which set 
forth certain boundaries of the usual and accustomed (U&A) fishing 
areas in the Pacific Ocean of the Quileute Nation (Quileute) and 
Quinault Indian Nation (Quinault). This action also includes related 
changes to NMFS regulations to provide consistency for tribal U&A 
fishing area boundaries across all fisheries managed by NMFS under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson 
Act).

DATES: This final rule is effective June 8, 2016.

ADDRESSES: Information relevant to this final rule are available from 
William W. Stelle, Jr., Regional Administrator, West Coast Region, 
NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070. Electronic 
copies of this final rule are also available at the NMFS West Coast 
Region Web site: http://www.westcoast.fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Gretchen Hanshew, phone: 206-526-6147, 
fax: 206-526-6736, or email: [email protected].

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This rule is accessible via the Internet at the Office of the 
Federal Register Web site at https://www.federalregister.gov. 
Background information and documents are available at the NMFS West 
Coast Region Web site at http://www.westcoast.fisheries.noaa.gov.

Background

    The Magnuson Act requires that any fishery management plan approved 
by the Secretary of Commerce and any implementing regulations be 
consistent with all provisions of the Act and ``any other applicable 
law.'' 16 U.S.C. 1854(b)(1). ``Other applicable law'' includes treaties 
with northwest Indian tribes reserving ``the right of taking fish, at 
all usual and accustomed grounds and stations.'' Washington State 
Charterboat Association v. Baldrige, 702 F.2d 820, 823 (9th Cir. 1983). 
For many years, NMFS has recognized that it must accommodate these 
treaty fishing rights regardless of whether the details of those rights 
have been judicially determined. In 1986, NMFS's regulations first 
described ``treaty fishing areas'' of the Pacific Coast treaty Indian 
tribes. 51 FR 16471 (May 2, 1986). For purposes of this rule, Pacific 
Coast treaty Indian tribes means the Hoh, Makah, and Quileute Indian 
Tribes and the Quinault Indian Nation. The boundary descriptions of 
treaty fishing areas first applied only to the Pacific halibut fishery, 
but in 1987 the same descriptions were adopted for the Pacific salmon 
fishery. 52 FR 17264 (May 6, 1987). NMFS has consistently stated that 
these boundaries were not intended to represent a formal determination 
of the boundaries of treaty fishing areas, and that they are subject to 
change as necessary to comport with future court orders.
    In 1996, NMFS issued a final rule amending its regulations managing 
West Coast groundfish fisheries and describing the physical boundaries 
of Pacific Coast treaty Indian tribes' usual and accustomed (U&A) 
fishing areas. This rule described the same areas that had previously 
been set forth in NMFS regulations. In promulgating the rule, NMFS 
explained that:

    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 
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.

61 FR 28786, 28789 (June 6, 1996)
    Subsequently, NMFS promulgated regulations to describe the same U&A 
fishing area boundaries in its regulations for coastal pelagic species 
and highly migratory species. 66 FR 44986 (August 27, 2001) (coastal 
pelagic species); 68 FR 68834 (December 10, 2003) (highly migratory 
species). The same boundaries are also codified in the regulations 
governing Pacific halibut fisheries. 50 CFR 300.64. Regulations 
governing Pacific salmon fisheries are not codified, but also use the 
same boundaries when issued on a yearly basis. See, e.g., 81 FR 26157 
(May 2, 2016).

Newly Adjudicated Boundaries of Pacific Coast Treaty Tribes' U&A 
Fishing Areas

    On August 27, 2015, the United States District Court for the 
Western District of Washington set forth the boundaries of the U&A 
fishing areas for the Quileute and the Quinault. United States v. 
Washington, 2:09-sp-00001-RSM, (W.D. Wash. Aug. 27, 2015) (Order 
Regarding Boundaries of Quinault & Quileute U&As). That order was 
amended on September 3, 2015. United States v. Washington, 2:09-sp-
00001-RSM, (W.D. Wash. Sept. 3, 2015) (Amended Order Regarding 
Boundaries of Quinault & Quileute U&As). This

[[Page 36807]]

rulemaking implements the September 3 Amended Order. These newly 
adjudicated boundaries differed in some respects from the boundaries 
that NMFS adopted in the 1996 regulations. Specifically, the 
adjudicated northern boundary of the Quileute's U&A fishing area and 
the western boundary of the Quinault's U&A fishing area differ from the 
1996 regulations. Accordingly, NMFS now revises the latitude and 
longitude coordinates describing the tribes' U&A fishing areas, 
consistent with the September 3, 2015, court order. Other boundaries, 
and their supporting rationale as described in the June 6, 1996, rule 
(61 FR 28789) are not affected by this rulemaking.

Technical Revisions

    The Pacific Coast treaty Indian tribal U&A fishing areas are 
referenced in several places within title 50, part 660. To reduce 
duplicative regulations and ensure consistency within title 50, part 
660, regulations describing the Pacific Coast treaty Indian tribes' U&A 
fishing areas are consolidated and moved to Sec.  660.4, subpart A. 
Cross-references to Pacific coast treaty tribes' U&A fishing areas 
throughout title 50, part 660 are updated. Minor changes to regulations 
are made to consistently refer to ``U&A fishing areas'' rather than 
``U&As.''
    Minor changes are also made to consistently refer to the tribes' 
U&A fishing areas ``within the EEZ.'' Regulations at Sec.  660.50(c) 
previously described tribal U&A fishing areas as ``within the fishery 
management area.'' ``Fishery management area'' is defined slightly 
differently in the various parts and subparts within title 50, part 
660, and include additional details that do not apply for the purpose 
of describing U&A fishing areas. The term ``fishery management area'' 
as it relates to Pacific Coast treaty Indian tribes' U&A fishing areas 
is therefore replaced with the term EEZ, which is defined at Sec.  
600.10.
    All of the minor regulatory changes described in ``Technical 
Revisions'' are non-substantive, and intended to reduce duplicative 
regulations and bring consistency among the parts and subparts in title 
50, part 660, regarding Pacific coast treaty Indian tribes' U&A fishing 
areas.

Classification

    The Administrator, West Coast Region, NMFS, determined that the 
minor regulatory amendments associated with the Court-ordered changes 
to tribal U&A fishing areas, which this final rule implements, are 
necessary for conservation and management and are consistent with the 
Magnuson Act and other applicable laws.
    NMFS finds good cause to waive prior public notice and comment on 
the revisions to regulations in this final rule under 5 U.S.C. 
553(b)(3)(B) because notice and comment would be impracticable and 
contrary to the public interest. Affording the time necessary for 
notice and comment rulemaking for these changes to regulations is 
impracticable and contrary to the public interest because the district 
court has issued its final judgment and the boundaries adjudicated by 
the court are controlling. NMFS's regulations must be modified 
consistent with the court order as quickly as possible to bring them 
into compliance with the legal requirements. It is further necessary to 
act quickly to modify the tribal U&A fishing area boundaries and to 
make related, minor technical corrections in title 50, part 660, to 
prevent the confusion that arises out of conflicting boundaries, which 
adds complexity to the management regime and creates problems for state 
and Federal management and enforcement. Furthermore, NMFS is not 
exercising any discretion in issuing this rule, but only making the 
changes necessary to comply with the court order. For the same reasons, 
NMFS also finds good cause to waive the 30-day delay in effectiveness.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The regulations at Sec.  660.50(d) state treaty rights ``will be 
implemented by the Secretary'' and regulations will be developed in 
consultation with the affected tribe(s). The minor regulatory 
amendments associated with the Court-ordered changes to tribal U&A 
fishing areas in this final rule have been developed following these 
procedures.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian Fisheries.

    Dated: June 2, 2016.
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 amended 
as follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 
16 U.S.C. 7001 et seq.

0
2. A new Sec.  660.4 is added to subpart A to read as follows:


Sec.  660.4  Usual and accustomed fishing areas for Pacific Coast 
treaty Indian tribes.

    (a) The Pacific Coast treaty Indian tribes' usual and accustomed 
(U&A) fishing areas within the EEZ are set out below in paragraphs 
(a)(1) through (a)(4) of this section. Boundaries of a tribe's fishing 
area may be revised as ordered by a Federal court.
    (1) Makah. The area north of 48[deg]02.25' N. lat. (Norwegian 
Memorial) and east of 125[deg]44' W. long.
    (2) Quileute. The area between 48[deg]10.00' N. lat. (Cape Alava) 
and 47[deg]31.70' N. lat. (Queets River) and east of 125[deg]44.00' W. 
long.
    (3) Hoh. The area between 47[deg]54.30' N. lat. (Quillayute River) 
and 47[deg]21.00' N. lat. (Quinault River) and east of 125[deg]44.00' 
W. long.
    (4) Quinault. The area between 47[deg]40.10' N. lat. (Destruction 
Island) and 46[deg]53.30' N. lat. (Point Chehalis) and east of 
125[deg]08.50' W. long.
    (b) [Reserved]

0
3. In Sec.  660.11, add a new definition for ``Usual and accustomed 
fishing areas'' in alphabetical order to read as follows:


Sec.  660.11  General definitions.

* * * * *
    Usual and accustomed fishing areas or U&A fishing areas for Pacific 
Coast treaty Indian tribes, occurring within the EEZ, are described at 
Sec.  660.4, subpart A.
* * * * *

0
4. In Sec.  660.12, revise paragraph (a)(14) to read as follows:


Sec.  660.12  General groundfish prohibitions.

* * * * *
    (a) * * *
    (14) During times or in areas where at-sea processing is 
prohibited, take and retain or receive Pacific whiting, except as cargo 
or fish waste, on a vessel in the fishery management area that already 
has processed Pacific whiting on board. An exception to this 
prohibition is provided if the fish are received within the tribal U&A 
fishing area, described at Sec.  660.4, subpart A, from a member of a 
Pacific Coast treaty Indian tribe fishing under Sec.  660.50, subpart 
C.
* * * * *
0
5. In Sec.  660.50, revise paragraphs (b), (c), (e)(4), and (g)(11) to 
read as follows:


Sec.  660.50  Pacific Coast treaty Indian fisheries.

* * * * *
    (b) Pacific Coast treaty Indian tribes. For the purposes of this 
part, Pacific Coast treaty Indian tribes means the Hoh Indian Tribe, 
Makah Indian Tribe, Quileute Indian Tribe and the Quinault Indian 
Nation.

[[Page 36808]]

    (c) Usual and accustomed fishing areas or U&A fishing areas. The 
Pacific Coast treaty Indian tribes' U&A fishing areas within the EEZ 
are set out in Sec.  660.4.
* * * * *
    (e) * * *
    (4) Fishing outside the U&A fishing area or without a groundfish 
allocation. Fishing by a member of a Pacific Coast treaty Indian tribe 
outside the applicable Indian tribe's U&A fishing area, or for a 
species of groundfish not covered by an allocation, set-aside, or 
regulation under this section, is subject to the regulations in the 
other sections of subpart C through subpart G of this part. Treaty 
fisheries operating within tribal allocations are prohibited from 
operating outside the U&A fishing areas described at Sec.  660.4, 
subpart A.
* * * * *
    (g) * * *
    (11) EFH. Measures implemented to minimize adverse impacts to 
groundfish EFH, as described in Sec.  660.12 of this subpart, do not 
apply to tribal fisheries in their U&A fishing areas described at Sec.  
660.4, subpart A.

0
6. In 660.112, revise paragraph (c)(2) to read as follows:


Sec.  660.112  Trawl fishery--prohibitions.

* * * * *
    (c) * * *
    (2) During times or in areas where at-sea processing is prohibited, 
take and retain or receive Pacific whiting, except as cargo or fish 
waste, on a vessel in the fishery management area that already has 
processed Pacific whiting on board. An exception to this prohibition is 
provided if the fish are received within the tribal U&A fishing area, 
described at Sec.  660.4, subpart A, from a member of a Pacific Coast 
treaty Indian tribe fishing under Sec.  660.50, subpart C.
* * * * *

0
7. In Sec.  660.518, revise paragraphs (a) and (b) to read as follows:


Sec.  660.518  Pacific Coast Treaty Indian Rights.

    (a) Pacific Coast treaty Indian tribes have treaty rights to 
harvest CPS in their usual and accustomed fishing areas in the EEZ.
    (b) For the purposes of this section, Pacific Coast treaty Indian 
tribes means the Hoh, Makah, and Quileute Indian Tribes and the 
Quinault Indian Nation, and their ``usual and accustomed fishing 
areas'' are described at Sec.  660.4, subpart A.
* * * * *

0
8. In Sec.  660.706, revise paragraphs (a), (c), (d), (f) and (h) to 
read as follows:


Sec.  660.706  Pacific Coast Treaty Indian rights.

    (a) Pacific Coast treaty Indian tribes have treaty rights to 
harvest HMS in their usual and accustomed (U&A) fishing areas in the 
EEZ.
* * * * *
    (c) The Pacific Coast treaty Indian tribes' U&A fishing areas 
within the EEZ are set forth in Sec.  660.4 of this chapter.
    (d) Procedures. The rights referred to in paragraph (a) of this 
section will be implemented by the Secretary of Commerce, 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 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 NMFS West Coast Regional Administrator, at least 120 days 
prior to the time the allocation is desired to be effective, and will 
be subject to public review through the Council process. The Secretary 
of Commerce recognizes the sovereign status and co-manager role of 
Indian tribes over shared Federal and tribal fishery resources. 
Accordingly, the Secretary of Commerce will develop tribal allocations 
and regulations in consultation with the affected tribe(s) and, insofar 
as possible, with tribal consensus.
* * * * *
    (f) Fishing (on a tribal allocation or under a Federal regulation 
applicable to tribal fisheries) by a member of a Pacific Coast treaty 
Indian tribe within that tribe's U&A fishing area is not subject to 
provisions of the HMS regulations applicable to non-treaty fisheries.
* * * * *
    (h) Fishing by a member of a Pacific Coast treaty Indian tribe 
outside that tribe's U&A fishing area, or for a species of HMS not 
covered by a treaty allocation or applicable Federal regulation, is 
subject to the HMS regulations applicable to non-treaty fisheries.

[FR Doc. 2016-13469 Filed 6-7-16; 8:45 am]
 BILLING CODE 3510-22-P