[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Proposed Rules]
[Pages 21716-21720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8750]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 120330244-2242-01]
RIN 0648-BB77


Fisheries of the Exclusive Economic Zone Off Alaska; Pacific 
Salmon

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 12 to the 
Fishery Management Plan for Salmon Fisheries in the EEZ off the Coast 
of Alaska (FMP). If approved, Amendment 12 would comprehensively revise 
and update the FMP to reflect the North Pacific Fishery Management 
Council's (Council's) salmon management policy and to comply with 
Federal law. This proposed rule is necessary to revise specific 
regulations and remove obsolete regulations in accordance with the 
modifications proposed by Amendment 12. These proposed regulations are 
intended to promote the goals and objectives of the Magnuson-Stevens 
Fishery Conservation and Management Act, the FMP, and other applicable 
laws.

DATES: Comments must be received no later than May 29, 2012.

ADDRESSES: You may submit comments, identified by FDMS Docket Number 
NOAA-NMFS-2011-0295, by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov. 
To submit comments via the e-Rulemaking Portal, first click the 
``submit a comment'' icon, then enter NOAA-NMFS-2011-0295 in the 
keyword search. Locate the document you wish to comment on from the 
resulting list and click on the ``Submit a Comment'' icon on that line.
    <bullet> Fax: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Fax comments to 907-586-7557.
    <bullet> Mail: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, 
AK 99802-1668.
    <bullet> Hand delivery to the Federal Building: Address written 
comments to Glenn Merrill, Assistant Regional Administrator, 
Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen 
Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau, 
AK.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted to http://www.regulations.gov 
without change. All Personal Identifying Information (for example, 
name, address, etc.) voluntarily submitted by the commenter will be 
publicly accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Electronic copies of the proposed Fishery Management Plan for the 
Salmon Fisheries in the EEZ off Alaska and the draft Environmental 
Assessment/Regulatory Impact Review prepared for this action may be 
obtained from http://www.regulations.gov or from the NMFS Alaska Region 
Web site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION: This proposed rule would implement Amendment 
12 to the FMP. The Council has submitted Amendment 12 for review by the 
Secretary of Commerce, and a Notice of Availability (NOA) of this 
amendment was published in the Federal Register on April 2, 2012 (77 FR 
19605) with comments invited through June 1, 2012. Respondents do not 
need to submit the same comments on both the NOA and this proposed 
rule. All relevant written comments received by the end of the comment 
period for the NOA, whether specifically directed to the FMP amendment, 
this proposed rule, or both, will be considered in the approval/
disapproval decision for Amendment 12 and addressed in the response to 
comments in the final rule.
    The Council prepared the FMP under the authority of the Magnuson-
Stevens Fishery Conservation and Management

[[Page 21717]]

Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations 
governing U.S. fisheries and implementing the FMP appear at 50 CFR part 
679. The FMP was approved in 1979 and last comprehensively revised in 
1990. The current FMP conserves and manages the Pacific salmon 
commercial and sport fisheries that occur in the exclusive economic 
zone (EEZ) off Alaska. The FMP establishes two management areas: the 
East Area is the EEZ in the Gulf of Alaska east of Cape Suckling 
(143[deg]53.6' West Longitude), and the West Area is the EEZ off the 
coast of Alaska west of Cape Suckling. The FMP manages commercial 
salmon fisheries differently in each area. In the East Area, the FMP 
delegates management of the commercial troll salmon fishery to the 
State of Alaska (State) to manage in compliance with the Pacific Salmon 
Treaty, Magnuson-Stevens Act, and FMP. The FMP prohibits commercial 
salmon fishing with net gear in the East Area. In the West Area, the 
FMP prohibits commercial salmon fishing, except for commercial salmon 
fishing with net gear in three defined areas of the EEZ adjacent to 
Cook Inlet, Prince William Sound, and the Alaska Peninsula. The FMP 
delegates management of the sport fishery to the State in both areas.
    Although the FMP has been amended nine times in the last two 
decades, no comprehensive reconsideration of management strategies or 
the scope of Federal management has occurred since 1990. State 
fisheries regulations and Federal and international laws affecting 
Alaska salmon have changed since 1990, and the reauthorized Magnuson-
Stevens Act expanded the requirements for FMPs. Additionally, the 1990 
FMP is vague with respect to management authority for commercial salmon 
fishing in the three defined areas that occur in the West Area. 
Therefore, the Council determined that the FMP must be updated to 
comply with current Magnuson-Stevens Act requirements and amended to 
more clearly reflect the Council's policy regarding the State's 
continued management authority over commercial fisheries in the West 
Area, the Southeast Alaska commercial troll fishery, and the sport 
fishery.

Amendment 12

    In December 2011, the Council voted unanimously to recommend 
Amendment 12 to the FMP. The Council considered revisions to the FMP at 
five separate meetings that occurred over more than a year. At each 
regularly scheduled and noticed public meeting, the Council took public 
testimony and considered written and oral public comments, providing 
stakeholders with opportunities for involvement on this issue. 
Additionally, the Council conducted a special open workshop for 
stakeholders in September 2011, which was attended by more than 20 
members of the public, three Council members, Council staff, and State 
and Federal agency staff. The Council considered the comments and 
suggestions made during that workshop in developing Amendment 12.
    Amendment 12 would comprehensively revise the FMP to reflect the 
Council's salmon management policy, which is to facilitate State of 
Alaska salmon management in accordance with the Magnuson-Stevens Act, 
Pacific Salmon Treaty, and applicable Federal law. Under this policy, 
the Council identified six management objectives to guide salmon 
management under the FMP and achieve the management policy: (1) Prevent 
overfishing and achieve optimum yield, (2) manage salmon as a unit 
throughout their range, (3) minimize bycatch and bycatch mortality, (4) 
maximize economic and social benefits to the Nation over time, (5) 
protect wild stocks and fully utilize hatchery production, and (6) 
promote safety. The Council, NMFS, and the State of Alaska will 
consider these management objectives in developing FMP amendments and 
associated fishery management measures.
    To reflect the Council's policy and objectives, Amendment 12 would 
redefine the FMP's management area to exclude Cook Inlet, Prince 
William Sound, and Alaska Peninsula net fishing areas and the sport 
fishery from the West Area. The Council determined that excluding these 
areas and the sport fishery from the West Area and the FMP would allow 
the State to manage Alaska salmon stocks as seamlessly as practicable 
throughout their range, rather than imposing dual State and Federal 
management. The FMP would continue to apply to the vast majority of the 
EEZ west of Cape Suckling and would maintain the prohibition on 
commercial salmon fishing in the redefined West Area.
    In the East Area, Amendment 12 would maintain the current scope of 
the FMP and would reaffirm that management of the commercial and sport 
salmon fisheries in the East Area is delegated to the State. The FMP 
relies on a combination of State management and management under the 
Pacific Salmon Treaty to ensure that salmon stocks, including trans-
boundary stocks, are managed as a unit throughout their ranges and 
interrelated stocks are managed in close coordination. Maintaining the 
FMP in the East Area would leave existing management structures in 
place, recognizing that the FMP is the nexus for the application of the 
Pacific Salmon Treaty and other applicable Federal law.
    The Council also recommended a number of provisions to update the 
FMP and bring it into compliance with the Magnuson-Stevens Act and 
other applicable Federal law. Amendment 12 includes these changes in a 
reorganized FMP with a more concise title, ``Fishery Management Plan 
for the Salmon Fisheries in the EEZ off Alaska.'' The Notice of 
Availability prepared for Amendment 12 provides detailed information on 
the provisions of Amendment 12 as well as additional explanation of the 
Council's rationale for Amendment 12 (77 FR 19605, April 2, 2012).

Proposed Rule

    To implement Amendment 12, this proposed rule would amend Chapter 
50 of the CFR for the following purposes:
    <bullet> Revise Sec.  679.1 Purpose and Scope to reflect the new 
FMP title and clarify that the FMP governs commercial salmon fishing in 
the West Area and commercial and sport salmon fishing in the East Area.
    <bullet> Revise the definition of Salmon Management Area, at Sec.  
679.2, to explicitly exclude the Cook Inlet Area, the Prince William 
Sound Area, and the Alaska Peninsula Area from the West Area.
    <bullet> Revise Sec.  679.3(h), the relation of domestic fishing 
for salmon to other laws, and remove references to laws that are no 
longer applicable or current, such as references to the North Pacific 
Fisheries Act of 1954.
    <bullet> Remove regulations requiring Federal salmon permits at 
Sec.  679.4(h). The Council recommended removing the requirement for 
Federal salmon permits because the Council determined and NMFS agrees 
that such permits are no longer necessary. All current participants in 
the East Area commercial troll fishery have State of Alaska limited 
entry permits. According to the 1979 FMP, the Federal salmon permit was 
established as a complement to the State limited entry permit, intended 
to limit capacity in the EEZ by preventing persons who did not receive 
a State limited entry permit from simply shifting their fishing efforts 
into Federal waters. Additionally, the 1979 FMP explains that there was 
an interest in ensuring that the few vessels that had fished in the EEZ 
but not landed their catch in Alaska could continue to have access to 
the EEZ, even if they were not eligible for a State limited entry 
permit.

[[Page 21718]]

The problems identified in the 1979 FMP were addressed by this Federal 
permit system. In 1979 or 1980, NMFS issued 2 non-transferrable limited 
entry permits and these permits are no longer active in the fishery. As 
a result, the Federal permit system is obsolete and should be 
terminated.
    <bullet> Revise prohibitions at Sec.  679.7(h) to explicitly 
prohibit commercial fishing for salmon using any gear except troll gear 
in the East Area of the Salmon Management Area, and to explicitly 
prohibit commercial fishing for salmon in the West Area. Troll gear has 
been the only authorized gear for commercial fishing for salmon in the 
East Area since the original FMP was approved in 1979. Likewise, the 
FMP has prohibited commercial salmon fishing in the majority of West 
Area since 1979. With the removal of the three traditional net fishing 
areas from the West Area, an exception from this prohibition is no 
longer needed and the proposed rule would explicitly prohibit 
commercial fishing in the newly defined West Area.
    <bullet> Replace Figure 23 with a new map to show the newly defined 
Salmon Management Area and the three areas excluded from the West Area.

Classification

    Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, 
the NMFS Assistant Administrator has determined that this proposed rule 
is consistent with the FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law, subject to further consideration of 
comments received during the public comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.

Factual Basis for Certification

    NMFS guidelines for economic reviews of regulatory actions describe 
the criteria to evaluate whether a rule would impose impacts on ``a 
substantial number'' of small entities and the criteria used to 
evaluate whether a rule would impose ``significant economic impacts.''

Description and Estimate of the Number of Small Entities to which the 
Rule Applies

    Current regulations implementing the FMP do not directly regulate 
any small entities, except to prohibit fishing in certain areas and/or 
with certain gear types. These prohibitions have largely been in place 
since the FMP was first approved in 1979 and this proposed rule 
clarifies, but does not substantively change, these prohibitions.
    Under the current FMP, the Council and NMFS could have directly 
regulated the salmon fishing vessels in the East Area and in the three 
net fishing areas in the West Area. However, since 1990, NMFS and the 
Council have chosen not to directly regulate salmon fishing vessels in 
any of these areas.
    Under the proposed rule, NMFS and the Council are removing the 
possibility of Federal direct regulation of salmon fishing vessels in 
the three net fishing areas in the West Area by changing the definition 
of the Salmon Management Area at Sec.  679.2 to exclude these areas. 
NMFS and the Council are also removing the possibility of direct 
regulation of the sport fishery in the West Area by clarifying that the 
regulations only apply to commercial fishing for salmon in the West 
Area. By removing these areas from the Salmon Management Area and 
Federal regulations, salmon fishery management remains under State of 
Alaska jurisdiction. The State of Alaska has managed these salmon 
fisheries since statehood. Therefore, while this proposed rule would 
clearly define the scope of the federal regulations, it does not 
substantively change the management of the salmon fisheries in a way 
that would have impacts on small entities.
    The Council and NMFS are retaining the potential to directly 
regulate salmon fishing vessels in the East Area; however, no such 
direct regulation is under consideration and the FMP explicitly 
delegates regulation of the salmon commercial troll fishery and sport 
fishery to the State of Alaska.

Estimate of Economic Impact on Small Entities, by Entity Size and 
Industry

    Because this action does not directly regulate small entities, 
there are no economic impacts from this action on small entities.

Description of, and an Explanation of the Basis for, Assumptions Used

    The economic analysis contained in the draft Environmental 
Assessment and Regulatory Impact Review for this action further 
describes (1) The regulatory and operational characteristics of the 
proposed action; (2) the history of the salmon fisheries under the FMP, 
including the role of Federal management and the delegation of 
management to the State of Alaska; (3) the history of this action; and 
(4) the details of the alternatives considered for this action, 
including the preferred alternative (see ADDRESSES).
    From this analysis, it is clear that the FMP does not directly 
regulate any entities, including small entities. Under the FMP, 
participants in the salmon fisheries under the FMP are directly managed 
by the State of Alaska. This action does not change State management, 
it only revises and updates the regulations to reflect the revised and 
updated FMP. As a result, an initial regulatory flexibility analysis is 
not required and none has been prepared.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 5, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator For Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority:  16 U.S.C. 773 et seq., 1801 et seq., 3631 et seq., 
and Pub. L. 108-447.

    2. In Sec.  679.1, revise paragraph (i) to read as follows:


Sec.  679.1  Purpose and scope.

* * * * *
    (i) Fishery Management Plan for the Salmon Fisheries in the EEZ Off 
Alaska (Salmon FMP). (1) Regulations in this part govern commercial 
fishing for salmon by fishing vessels of the United States in the West 
Area of the Salmon Management Area.
    (2) State of Alaska laws and regulations that are consistent with 
the Salmon FMP and with the regulations in this part apply to vessels 
of the United States that are commercial and sport fishing for salmon 
in the East Area of the Salmon Management Area.
* * * * *
    3. In Sec.  679.2, revise the definition for ``Salmon Management 
Area'' to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Salmon Management Area means those waters of the EEZ off Alaska 
(see Figure 23 to part 679) under the authority of the Salmon FMP. The 
Salmon Management Area is divided

[[Page 21719]]

into a West Area and an East Area with the border between the two at 
the longitude of Cape Suckling (143[deg]53.6' W):
    (1) The East Area means the area of the EEZ in the Gulf of Alaska 
east of the longitude of Cape Suckling (143[deg]53.6' W).
    (2) The West Area means the area of the EEZ off Alaska in the 
Bering Sea, Chukchi Sea, Beaufort Sea, and the Gulf of Alaska west of 
the longitude of Cape Suckling (143[deg]53.6' W) but excludes the Cook 
Inlet Area, the Prince William Sound Area, and the Alaska Peninsula 
Area, shown in Figure 23 and described as:
    (i) The Cook Inlet Area which means the EEZ waters north of a line 
at 59[deg]46.15' N;
    (ii) The Prince William Sound Area which means the EEZ waters 
shoreward of a line that starts at 60[deg]16.8' N and 146[deg]15.24' W 
and extends southeast to 59[deg]42.66' N and 144[deg]36.20' W and a 
line that starts at 59[deg]43.28' N and 144[deg]31.50' W and extends 
northeast to 59[deg]56.4' N and 143[deg]53.6' W.
    (iii) The Alaska Peninsula Area which means the EEZ waters 
shoreward of a line at 54[deg]22.5' N from 164[deg]27.1' W to 
163[deg]1.2' W and a line at 162[deg]24.05' W from 54[deg]30.1' N to 
54[deg]27.75' N.
* * * * *
    4. In Sec.  679.3, revise paragraph (f) to read as follows:


Sec.  679.3  Relation to other laws.

* * * * *
    (f) Domestic fishing for salmon. Management of the salmon 
commercial troll fishery and sport fishery in the East Area of the 
Salmon Management Area, defined at Sec.  679.2, is delegated to the 
State of Alaska.
* * * * *


Sec.  679.4  [Amended]

    5. In Sec.  679.4, remove and reserve paragraph (a)(1)(v) and 
paragraph (h).
    6. In Sec.  679.7, revise paragraph (h) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (h) Salmon Fisheries. (1) Engage in commercial fishing for salmon 
using any gear except troll gear, defined at Sec.  679.2, in the East 
Area of the Salmon Management Area, defined at Sec.  679.2 and Figure 
23 to this part.
    (2) Engage in commercial fishing for salmon in the West Area of the 
Salmon Management Area, defined at Sec.  679.2 and Figure 23 to this 
part.
* * * * *
    7. Revise Figure 23 to part 679 to read as follows:

[[Page 21720]]

[GRAPHIC] [TIFF OMITTED] TP11AP12.000

[FR Doc. 2012-8750 Filed 4-10-12; 8:45 am]
BILLING CODE 3510-22-P