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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 679
          - [Docket No. 120330244-2242-01]
          - RIN 0648-BB77

# AGENCY:

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

# ACTION:

Proposed rule; request for comments.

# 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:
      -  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.                    
      -  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.                    
      -  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.                    
      -  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                           ( print 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°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:
    - Revise § 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.
    - Revise the definition of Salmon Management Area, at § 679.2, to explicitly exclude the Cook Inlet Area, the Prince William Sound Area, and the Alaska Peninsula Area from the West Area.
    - Revise § 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.
    - Remove regulations requiring Federal salmon permits at § 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.       ( print 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.                
    - Revise prohibitions at § 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.
    - 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 § 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 § 679.1, revise paragraph (i) to read as follows:

§ 679.1 

* * * * *

                            (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 § 679.2, revise the definition for “Salmon Management Area” to read as follows:

§ 679.2 

* * * * *

*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                                   ( print page 21719)                                into a West Area and an East Area with the border between the two at the longitude of Cape Suckling (143°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°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°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°46.15′ N;

(ii) The Prince William Sound Area which means the EEZ waters shoreward of a line that starts at 60°16.8′ N and 146°15.24′ W and extends southeast to 59°42.66′ N and 144°36.20′ W and a line that starts at 59°43.28′ N and 144°31.50′ W and extends northeast to 59°56.4′ N and 143°53.6′ W.

(iii) The Alaska Peninsula Area which means the EEZ waters shoreward of a line at 54°22.5′ N from 164°27.1′ W to 163°1.2′ W and a line at 162°24.05′ W from 54°30.1′ N to 54°27.75′ N.

* * * * *

4. In § 679.3, revise paragraph (f) to read as follows:

§ 679.3 

* * * * *

                            (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 § 679.2, is delegated to the State of Alaska.                        

* * * * *

§ 679.4 

5. In § 679.4, remove and reserve paragraph (a)(1)(v) and paragraph (h).

6. In § 679.7, revise paragraph (h) to read as follows:

§ 679.7 

* * * * *

                            (h)                             *Salmon Fisheries.*                             (1) Engage in commercial fishing for salmon using any gear except troll gear, defined at § 679.2, in the East Area of the Salmon Management Area, defined at § 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 § 679.2 and Figure 23 to this part.

* * * * *

7. Revise Figure 23 to part 679 to read as follows:
      ( print page 21720)    

[FR Doc. 2012-8750 Filed 4-10-12; 8:45 am]

BILLING CODE 3510-22-P