81_FR_36916 81 FR 36806 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Tribal Usual and Accustomed Fishing Areas

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)

Page Range36806-36808
FR Document2016-13469

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 Issue 110 (Wednesday, June 8, 2016)
[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



                                           36806             Federal Register / Vol. 81, No. 110 / Wednesday, June 8, 2016 / Rules and Regulations

                                           Innovation Opportunities of Spectrum                    accustomed (U&A) fishing areas in the                  (May 6, 1987). NMFS has consistently
                                           Through Incentive Auctions; Petition of                 Pacific Ocean of the Quileute Nation                   stated that these boundaries were not
                                           DIRECTV Group, Inc. and EchoStar LLC                    (Quileute) and Quinault Indian Nation                  intended to represent a formal
                                           for Expedited Rulemaking to Amend                       (Quinault). This action also includes                  determination of the boundaries of
                                           Section 1.2105(a)(2)(xi) and 1.2106(a) of               related changes to NMFS regulations to                 treaty fishing areas, and that they are
                                           the Commission’s Rules and/or for                       provide consistency for tribal U&A                     subject to change as necessary to
                                           Interim Conditional Waiver;                             fishing area boundaries across all                     comport with future court orders.
                                           Implementation of the Commercial                        fisheries managed by NMFS under the                       In 1996, NMFS issued a final rule
                                           Spectrum Enhancement Act and                            Magnuson-Stevens Fishery                               amending its regulations managing West
                                           Modernization of the Commission’s                       Conservation and Management Act                        Coast groundfish fisheries and
                                           Competitive Bidding Rules and                           (Magnuson Act).                                        describing the physical boundaries of
                                           Procedures, Report and Order, Order on                  DATES: This final rule is effective June               Pacific Coast treaty Indian tribes’ usual
                                           Reconsideration of the First Report and                 8, 2016.                                               and accustomed (U&A) fishing areas.
                                           Order, Third Order on Reconsideration                   ADDRESSES: Information relevant to this                This rule described the same areas that
                                           of the Second Report and Order, and                     final rule are available from William W.               had previously been set forth in NMFS
                                           Third Report and Order, FCC 15–80, 30                   Stelle, Jr., Regional Administrator, West              regulations. In promulgating the rule,
                                           FCC Rcd 7493 (2015), modified by                        Coast Region, NMFS, 7600 Sand Point                    NMFS explained that:
                                           Erratum, 30 FCC Rcd 8518 (2015) (Part                   Way NE., Seattle, WA 98115–0070.                          Under this rule, NMFS recognizes the same
                                           1 R&O)). Of relevance to the information                Electronic copies of this final rule are               U&A areas that have been implemented in
                                           collection at issue here, the Commission                also available at the NMFS West Coast                  Federal salmon and halibut regulations for a
                                           amended 47 CFR 1.2110(n), which                         Region Web site: http://                               number of years. The States and the Quileute
                                           requires designated entity licensees to                                                                        tribe point out that the western boundary has
                                                                                                   www.westcoast.fisheries.noaa.gov.                      only been adjudicated for the Makah tribe.
                                           file with the Commission an annual
                                                                                                   FOR FURTHER INFORMATION CONTACT:                       NMFS agrees. NMFS, however, in
                                           report for each license it holds that was                                                                      establishing ocean management areas, has
                                                                                                   Gretchen Hanshew, phone: 206–526–
                                           acquired using designated entity                                                                               taken the adjudicated western boundary for
                                                                                                   6147, fax: 206–526–6736, or email:
                                           benefits and that, as of August 31 of the                                                                      the Makah tribe, and extended it south as the
                                                                                                   gretchen.hanshew@noaa.gov.
                                           year in which the report is due, remains                                                                       western boundary for the other three ocean
                                                                                                   SUPPLEMENTARY INFORMATION:                             tribes. NMFS believes this is a reasonable
                                           subject to designated entity unjust
                                           enrichment requirements. Because the                    Electronic Access                                      accommodation of the tribal fishing rights,
                                           Commission amended 47 CFR                                                                                      absent more specific guidance from a court.
                                                                                                      This rule is accessible via the Internet            NMFS regulations, including this regulation,
                                           1.2110(n), the Commission is also                       at the Office of the Federal Register Web              contain the notation that the boundaries of
                                           amending FCC Form 611–T, which is                       site at https://www.federalregister.gov.               the U&A may be revised by order of the
                                           the form that is used to collect this                   Background information and documents                   court.
                                           information.                                            are available at the NMFS West Coast                   61 FR 28786, 28789 (June 6, 1996)
                                           Federal Communications Commission.                      Region Web site at http://                                Subsequently, NMFS promulgated
                                           Marlene H. Dortch,                                      www.westcoast.fisheries.noaa.gov.                      regulations to describe the same U&A
                                           Secretary, Office of the Secretary.                                                                            fishing area boundaries in its
                                                                                                   Background
                                           [FR Doc. 2016–13088 Filed 6–7–16; 8:45 am]                                                                     regulations for coastal pelagic species
                                                                                                      The Magnuson Act requires that any                  and highly migratory species. 66 FR
                                           BILLING CODE 6712–01–P
                                                                                                   fishery management plan approved by                    44986 (August 27, 2001) (coastal pelagic
                                                                                                   the Secretary of Commerce and any                      species); 68 FR 68834 (December 10,
                                                                                                   implementing regulations be consistent                 2003) (highly migratory species). The
                                           DEPARTMENT OF COMMERCE                                  with all provisions of the Act and ‘‘any               same boundaries are also codified in the
                                                                                                   other applicable law.’’ 16 U.S.C.                      regulations governing Pacific halibut
                                           National Oceanic and Atmospheric
                                                                                                   1854(b)(1). ‘‘Other applicable law’’                   fisheries. 50 CFR 300.64. Regulations
                                           Administration
                                                                                                   includes treaties with northwest Indian                governing Pacific salmon fisheries are
                                                                                                   tribes reserving ‘‘the right of taking fish,           not codified, but also use the same
                                           50 CFR Part 660
                                                                                                   at all usual and accustomed grounds                    boundaries when issued on a yearly
                                           [Docket No. 160303183–6183–01]                          and stations.’’ Washington State                       basis. See, e.g., 81 FR 26157 (May 2,
                                                                                                   Charterboat Association v. Baldrige, 702               2016).
                                           RIN 0648–BF58                                           F.2d 820, 823 (9th Cir. 1983). For many
                                                                                                   years, NMFS has recognized that it must                Newly Adjudicated Boundaries of
                                           Magnuson-Stevens Act Provisions;                                                                               Pacific Coast Treaty Tribes’ U&A
                                                                                                   accommodate these treaty fishing rights
                                           Fisheries Off West Coast States; Tribal                                                                        Fishing Areas
                                                                                                   regardless of whether the details of
                                           Usual and Accustomed Fishing Areas
                                                                                                   those rights have been judicially                        On August 27, 2015, the United States
                                           AGENCY:  National Marine Fisheries                      determined. In 1986, NMFS’s                            District Court for the Western District of
                                           Service (NMFS), National Oceanic and                    regulations first described ‘‘treaty                   Washington set forth the boundaries of
                                           Atmospheric Administration (NOAA),                      fishing areas’’ of the Pacific Coast treaty            the U&A fishing areas for the Quileute
                                           Commerce.                                               Indian tribes. 51 FR 16471 (May 2,                     and the Quinault. United States v.
                                           ACTION: Final rule.                                     1986). For purposes of this rule, Pacific              Washington, 2:09–sp–00001–RSM,
                                                                                                   Coast treaty Indian tribes means the                   (W.D. Wash. Aug. 27, 2015) (Order
                                           SUMMARY:   This final rule implements                   Hoh, Makah, and Quileute Indian Tribes                 Regarding Boundaries of Quinault &
ehiers on DSK5VPTVN1PROD with RULES




                                           the decision in United States v.                        and the Quinault Indian Nation. The                    Quileute U&As). That order was
                                           Washington, 2:09–sp–00001–RSM,                          boundary descriptions of treaty fishing                amended on September 3, 2015. United
                                           (W.D. Wash. Sept. 3, 2015) (Amended                     areas first applied only to the Pacific                States v. Washington, 2:09–sp–00001–
                                           Order Regarding Boundaries of Quinault                  halibut fishery, but in 1987 the same                  RSM, (W.D. Wash. Sept. 3, 2015)
                                           & Quileute U&As), which set forth                       descriptions were adopted for the                      (Amended Order Regarding Boundaries
                                           certain boundaries of the usual and                     Pacific salmon fishery. 52 FR 17264                    of Quinault & Quileute U&As). This


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                                                             Federal Register / Vol. 81, No. 110 / Wednesday, June 8, 2016 / Rules and Regulations                                              36807

                                           rulemaking implements the September 3                   Magnuson Act and other applicable                      § 660.4 Usual and accustomed fishing
                                           Amended Order. These newly                              laws.                                                  areas for Pacific Coast treaty Indian tribes.
                                           adjudicated boundaries differed in some                    NMFS finds good cause to waive prior                   (a) The Pacific Coast treaty Indian
                                           respects from the boundaries that NMFS                  public notice and comment on the                       tribes’ usual and accustomed (U&A)
                                           adopted in the 1996 regulations.                        revisions to regulations in this final rule            fishing areas within the EEZ are set out
                                           Specifically, the adjudicated northern                  under 5 U.S.C. 553(b)(3)(B) because                    below in paragraphs (a)(1) through (a)(4)
                                           boundary of the Quileute’s U&A fishing                  notice and comment would be                            of this section. Boundaries of a tribe’s
                                           area and the western boundary of the                    impracticable and contrary to the public               fishing area may be revised as ordered
                                           Quinault’s U&A fishing area differ from                 interest. Affording the time necessary                 by a Federal court.
                                           the 1996 regulations. Accordingly,                      for notice and comment rulemaking for                     (1) Makah. The area north of 48°02.25′
                                           NMFS now revises the latitude and                       these changes to regulations is                        N. lat. (Norwegian Memorial) and east of
                                           longitude coordinates describing the                    impracticable and contrary to the public               125°44′ W. long.
                                           tribes’ U&A fishing areas, consistent                   interest because the district court has                   (2) Quileute. The area between
                                           with the September 3, 2015, court order.                issued its final judgment and the                      48°10.00′ N. lat. (Cape Alava) and
                                           Other boundaries, and their supporting                  boundaries adjudicated by the court are                47°31.70′ N. lat. (Queets River) and east
                                           rationale as described in the June 6,                   controlling. NMFS’s regulations must be                of 125°44.00′ W. long.
                                           1996, rule (61 FR 28789) are not affected               modified consistent with the court order                  (3) Hoh. The area between 47°54.30′
                                           by this rulemaking.                                     as quickly as possible to bring them into              N. lat. (Quillayute River) and 47°21.00′
                                                                                                   compliance with the legal requirements.                N. lat. (Quinault River) and east of
                                           Technical Revisions                                     It is further necessary to act quickly to              125°44.00′ W. long.
                                              The Pacific Coast treaty Indian tribal               modify the tribal U&A fishing area                        (4) Quinault. The area between
                                           U&A fishing areas are referenced in                     boundaries and to make related, minor                  47°40.10′ N. lat. (Destruction Island)
                                           several places within title 50, part 660.               technical corrections in title 50, part                and 46°53.30′ N. lat. (Point Chehalis)
                                           To reduce duplicative regulations and                   660, to prevent the confusion that arises              and east of 125°08.50′ W. long.
                                           ensure consistency within title 50, part                out of conflicting boundaries, which                      (b) [Reserved]
                                           660, regulations describing the Pacific                 adds complexity to the management
                                                                                                                                                          ■ 3. In § 660.11, add a new definition for
                                           Coast treaty Indian tribes’ U&A fishing                 regime and creates problems for state
                                                                                                   and Federal management and                             ‘‘Usual and accustomed fishing areas’’
                                           areas are consolidated and moved to                                                                            in alphabetical order to read as follows:
                                           § 660.4, subpart A. Cross-references to                 enforcement. Furthermore, NMFS is not
                                           Pacific coast treaty tribes’ U&A fishing                exercising any discretion in issuing this              § 660.11   General definitions.
                                           areas throughout title 50, part 660 are                 rule, but only making the changes                      *     *     *      *    *
                                           updated. Minor changes to regulations                   necessary to comply with the court
                                                                                                                                                             Usual and accustomed fishing areas
                                           are made to consistently refer to ‘‘U&A                 order. For the same reasons, NMFS also
                                                                                                                                                          or U&A fishing areas for Pacific Coast
                                           fishing areas’’ rather than ‘‘U&As.’’                   finds good cause to waive the 30-day
                                                                                                                                                          treaty Indian tribes, occurring within
                                                                                                   delay in effectiveness.
                                              Minor changes are also made to                          This final rule has been determined to              the EEZ, are described at § 660.4,
                                           consistently refer to the tribes’ U&A                   be not significant for purposes of                     subpart A.
                                           fishing areas ‘‘within the EEZ.’’                       Executive Order 12866.                                 *     *     *      *    *
                                           Regulations at § 660.50(c) previously                      The regulations at § 660.50(d) state                ■ 4. In § 660.12, revise paragraph (a)(14)
                                           described tribal U&A fishing areas as                   treaty rights ‘‘will be implemented by                 to read as follows:
                                           ‘‘within the fishery management area.’’                 the Secretary’’ and regulations will be
                                           ‘‘Fishery management area’’ is defined                  developed in consultation with the                     § 660.12   General groundfish prohibitions.
                                           slightly differently in the various parts               affected tribe(s). The minor regulatory                *      *      *    *      *
                                           and subparts within title 50, part 660,                 amendments associated with the Court-                     (a) * * *
                                           and include additional details that do                  ordered changes to tribal U&A fishing                     (14) During times or in areas where at-
                                           not apply for the purpose of describing                 areas in this final rule have been                     sea processing is prohibited, take and
                                           U&A fishing areas. The term ‘‘fishery                   developed following these procedures.                  retain or receive Pacific whiting, except
                                           management area’’ as it relates to Pacific                                                                     as cargo or fish waste, on a vessel in the
                                           Coast treaty Indian tribes’ U&A fishing                 List of Subjects in 50 CFR Part 660
                                                                                                                                                          fishery management area that already
                                           areas is therefore replaced with the term                 Fisheries, Fishing, and Indian                       has processed Pacific whiting on board.
                                           EEZ, which is defined at § 600.10.                      Fisheries.                                             An exception to this prohibition is
                                              All of the minor regulatory changes                    Dated: June 2, 2016.                                 provided if the fish are received within
                                           described in ‘‘Technical Revisions’’ are                Samuel D. Rauch III,                                   the tribal U&A fishing area, described at
                                           non-substantive, and intended to reduce                 Deputy Assistant Administrator for                     § 660.4, subpart A, from a member of a
                                           duplicative regulations and bring                       Regulatory Programs, National Marine                   Pacific Coast treaty Indian tribe fishing
                                           consistency among the parts and                         Fisheries Service.                                     under § 660.50, subpart C.
                                           subparts in title 50, part 660, regarding                 For the reasons set out in the                       *      *      *    *      *
                                           Pacific coast treaty Indian tribes’ U&A                 preamble, 50 CFR part 660 is amended                   ■ 5. In § 660.50, revise paragraphs (b),
                                           fishing areas.                                          as follows:                                            (c), (e)(4), and (g)(11) to read as follows:
                                           Classification                                                                                                 § 660.50 Pacific Coast treaty Indian
                                                                                                   PART 660—FISHERIES OFF WEST
                                             The Administrator, West Coast                         COAST STATES                                           fisheries.
                                           Region, NMFS, determined that the                                                                              *     *     *    *     *
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                                           minor regulatory amendments                             ■ 1. The authority citation for part 660                 (b) Pacific Coast treaty Indian tribes.
                                           associated with the Court-ordered                       continues to read as follows:                          For the purposes of this part, Pacific
                                           changes to tribal U&A fishing areas,                      Authority: 16 U.S.C. 1801 et seq., 16                Coast treaty Indian tribes means the Hoh
                                           which this final rule implements, are                   U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.         Indian Tribe, Makah Indian Tribe,
                                           necessary for conservation and                          ■ 2. A new § 660.4 is added to subpart                 Quileute Indian Tribe and the Quinault
                                           management and are consistent with the                  A to read as follows:                                  Indian Nation.


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                                           36808             Federal Register / Vol. 81, No. 110 / Wednesday, June 8, 2016 / Rules and Regulations

                                              (c) Usual and accustomed fishing                     § 660.706    Pacific Coast Treaty Indian               DEPARTMENT OF COMMERCE
                                           areas or U&A fishing areas. The Pacific                 rights.
                                           Coast treaty Indian tribes’ U&A fishing                                                                        National Oceanic and Atmospheric
                                                                                                      (a) Pacific Coast treaty Indian tribes
                                           areas within the EEZ are set out in                                                                            Administration
                                                                                                   have treaty rights to harvest HMS in
                                           § 660.4.                                                their usual and accustomed (U&A)
                                           *      *    *     *     *                                                                                      50 CFR Part 679
                                                                                                   fishing areas in the EEZ.
                                              (e) * * *                                                                                                   [Docket No. 150818742–6210–02]
                                                                                                   *      *     *     *     *
                                              (4) Fishing outside the U&A fishing
                                                                                                      (c) The Pacific Coast treaty Indian                 RIN 0648–XE667
                                           area or without a groundfish allocation.
                                           Fishing by a member of a Pacific Coast                  tribes’ U&A fishing areas within the EEZ
                                                                                                                                                          Fisheries of the Exclusive Economic
                                           treaty Indian tribe outside the                         are set forth in § 660.4 of this chapter.              Zone Off Alaska; Other Hook-and-Line
                                           applicable Indian tribe’s U&A fishing                      (d) Procedures. The rights referred to              Fishery by Catcher Vessels in the Gulf
                                           area, or for a species of groundfish not                in paragraph (a) of this section will be               of Alaska
                                           covered by an allocation, set-aside, or                 implemented by the Secretary of
                                           regulation under this section, is subject                                                                      AGENCY:  National Marine Fisheries
                                                                                                   Commerce, after consideration of the
                                           to the regulations in the other sections                                                                       Service (NMFS), National Oceanic and
                                                                                                   tribal request, the recommendation of
                                           of subpart C through subpart G of this                                                                         Atmospheric Administration (NOAA),
                                                                                                   the Council, and the comments of the                   Commerce.
                                           part. Treaty fisheries operating within
                                                                                                   public. The rights will be implemented
                                           tribal allocations are prohibited from                                                                         ACTION: Temporary rule; closure.
                                                                                                   either through an allocation of fish that
                                           operating outside the U&A fishing areas
                                                                                                   will be managed by the tribes, or                      SUMMARY:   NMFS is prohibiting directed
                                           described at § 660.4, subpart A.
                                                                                                   through regulations that will apply                    fishing for groundfish, other than
                                           *      *    *     *     *                               specifically to the tribal fisheries. An               demersal shelf rockfish or sablefish
                                              (g) * * *                                            allocation or a regulation specific to the             managed under the Individual Fishing
                                              (11) EFH. Measures implemented to                    tribes shall be initiated by a written                 Quota Program, by catcher vessels (C/
                                           minimize adverse impacts to groundfish                                                                         Vs) using hook-and-line gear in the Gulf
                                                                                                   request from a Pacific Coast treaty
                                           EFH, as described in § 660.12 of this                                                                          of Alaska (GOA). This action is
                                                                                                   Indian tribe to the NMFS West Coast
                                           subpart, do not apply to tribal fisheries                                                                      necessary because the Pacific halibut
                                           in their U&A fishing areas described at                 Regional Administrator, at least 120
                                                                                                   days prior to the time the allocation is               bycatch allowance specified for the
                                           § 660.4, subpart A.                                                                                            other hook-and-line fishery by C/Vs in
                                                                                                   desired to be effective, and will be
                                           ■ 6. In 660.112, revise paragraph (c)(2)                                                                       the GOA has been reached.
                                                                                                   subject to public review through the
                                           to read as follows:                                                                                            DATES: Effective 1200 hours, Alaska
                                                                                                   Council process. The Secretary of
                                           § 660.112   Trawl fishery—prohibitions.                 Commerce recognizes the sovereign                      local time (A.l.t.), June 10, 2016, until
                                                                                                   status and co-manager role of Indian                   2400 hours A.l.t., December 31, 2016.
                                           *      *    *     *     *
                                                                                                   tribes over shared Federal and tribal                  FOR FURTHER INFORMATION CONTACT:
                                              (c) * * *
                                              (2) During times or in areas where at-               fishery resources. Accordingly, the                    Obren Davis, 907–586–7228.
                                           sea processing is prohibited, take and                  Secretary of Commerce will develop                     SUPPLEMENTARY INFORMATION: NMFS
                                           retain or receive Pacific whiting, except               tribal allocations and regulations in                  manages the groundfish fishery in the
                                           as cargo or fish waste, on a vessel in the              consultation with the affected tribe(s)                GOA exclusive economic zone
                                           fishery management area that already                    and, insofar as possible, with tribal                  according to the Fishery Management
                                           has processed Pacific whiting on board.                 consensus.                                             Plan for Groundfish of the Gulf of
                                           An exception to this prohibition is                                                                            Alaska (FMP) prepared by the North
                                                                                                   *      *     *     *     *
                                           provided if the fish are received within                                                                       Pacific Fishery Management Council
                                           the tribal U&A fishing area, described at                  (f) Fishing (on a tribal allocation or              (Council) under authority of the
                                           § 660.4, subpart A, from a member of a                  under a Federal regulation applicable to               Magnuson-Stevens Fishery
                                           Pacific Coast treaty Indian tribe fishing               tribal fisheries) by a member of a Pacific             Conservation and Management Act.
                                           under § 660.50, subpart C.                              Coast treaty Indian tribe within that                  Regulations governing fishing by U.S.
                                                                                                   tribe’s U&A fishing area is not subject to             vessels in accordance with the FMP
                                           *      *    *     *     *
                                                                                                   provisions of the HMS regulations                      appear at subpart H of 50 CFR part 600
                                           ■ 7. In § 660.518, revise paragraphs (a)                                                                       and 50 CFR part 679.
                                                                                                   applicable to non-treaty fisheries.
                                           and (b) to read as follows:                                                                                       The Pacific halibut bycatch allowance
                                                                                                   *      *     *     *     *
                                           § 660.518   Pacific Coast Treaty Indian                                                                        specified for the other hook-and-line
                                                                                                      (h) Fishing by a member of a Pacific                fishery by C/Vs in the GOA is 129
                                           Rights.
                                                                                                   Coast treaty Indian tribe outside that                 metric tons as established by the final
                                              (a) Pacific Coast treaty Indian tribes               tribe’s U&A fishing area, or for a species             2016 and 2017 harvest specifications for
                                           have treaty rights to harvest CPS in their              of HMS not covered by a treaty                         groundfish of the GOA (81 FR 14740,
                                           usual and accustomed fishing areas in                   allocation or applicable Federal                       March 18, 2016).
                                           the EEZ.                                                                                                          In accordance with § 679.21(d)(6)(ii),
                                                                                                   regulation, is subject to the HMS
                                              (b) For the purposes of this section,                                                                       the Administrator, Alaska Region,
                                                                                                   regulations applicable to non-treaty
                                           Pacific Coast treaty Indian tribes means                                                                       NMFS, has determined that the Pacific
                                                                                                   fisheries.
                                           the Hoh, Makah, and Quileute Indian                                                                            halibut bycatch allowance specified for
                                           Tribes and the Quinault Indian Nation,                  [FR Doc. 2016–13469 Filed 6–7–16; 8:45 am]
                                                                                                                                                          the other hook-and-line fishery by C/Vs
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                                           and their ‘‘usual and accustomed fishing                BILLING CODE 3510–22–P
                                                                                                                                                          in the GOA has been reached.
                                           areas’’ are described at § 660.4, subpart                                                                      Consequently, NMFS is prohibiting
                                           A.                                                                                                             directed fishing for groundfish, other
                                           *      *       *    *     *                                                                                    than demersal shelf rockfish or sablefish
                                           ■ 8. In § 660.706, revise paragraphs (a),                                                                      managed under the Individual Fishing
                                           (c), (d), (f) and (h) to read as follows:                                                                      Quota Program, by C/Vs using hook-


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Document Created: 2016-06-08 03:10:37
Document Modified: 2016-06-08 03:10:37
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective June 8, 2016.
ContactGretchen Hanshew, phone: 206-526-6147, fax: 206-526-6736, or email: [email protected]
FR Citation81 FR 36806 
RIN Number0648-BF58
CFR AssociatedFisheries; Fishing and Indian Fisheries

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