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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No.; 000906253-0253-01; I.D. 061500E]
          - RIN   0648-AL51

# 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 portions of Amendment 14 to the Fishery Management Plan for Commercial and Recreational Salmon Fisheries off the Coasts of Washington, Oregon, and California (Salmon FMP). 

                        Amendment 14, which was submitted by the Pacific Fishery Management Council (Council) on June 12, 2000, to the Secretary of Commerce (Secretary) for review and approval, brings the Salmon FMP into compliance with the Sustainable Fisheries Act’s (SFA) 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).  Amendment 14 includes designation of essential fish habitat (EFH) and new requirements to reduce bycatch, prevent overfishing, and rebuild overfished stocks.  This proposed rule to implement Amendment 14 would make minor changes to language regarding escapement and management goals; implement a new recreational allocation to the Port of La Push and adjust the Neah Bay allocation accordingly; add preseason flexibility for recreational port allocations north of Cape Falcon; and implement preseason flexibility in                               ( print page 63048)                            setting recreational port allocation or recreational and commercial allocations North of Cape Falcon to take advantage of selective fishing opportunities for marked hatchery fish.                    

# DATES:

Comments must be submitted in writing by December 4, 2000.

# ADDRESSES: 

Send comments to Donna Darm, Acting Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way N.E., Seattle, WA 98115-0070, fax: 206-526-6376; or to Rebecca Lent,  Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, fax: 562-980-4018.  Send comments regarding any ambiguity or unnecessary complexity arising from the language used in this rule to Donna Darm or Rebecca Lent.  Comments will not be accepted if submitted via email or Internet. 

Copies of Amendments 14 and the final supplemental environmental impact statement (FSEIS)/regulatory impact review (RIR)/initial regulatory flexibility analysis (IRFA), along with the appendices and the Review of 1999 Ocean Salmon Fisheries are available from Dr. Donald O. McIsaac, Executive Director, Pacific Fishery Management Council, 2130 SW Fifth Ave., Suite 224, Portland, OR  97201. 

# FOR FURTHER INFORMATION CONTACT:

Christopher L. Wright at 206- 526-6140, Svein Fougner at 562-980-4040, or Dr. Donald O. McIsaac at 503-326-6352. 

# SUPPLEMENTARY INFORMATION:

## Background

The Secretary approved the Salmon FMP under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq., in 1978.  The Council has amended the Salmon FMP 13 times since 1978.  The regulations are codified at 50 CFR part 660, subpart H.  The Salmon FMP was amended annually from 1979 to 1983; however, in 1984, a framework amendment was implemented that provided the mechanism for making preseason and inseason adjustments in the regulations without annual amendments. 

The Council prepared Amendment 14 to the Salmon FMP and submitted it on June 12, 2000, for Secretarial review.  NMFS published a notice of availability for Amendment 14 in the Federal Register on June 27, 2000 (65 FR 39584), announcing a 60-day public comment period, which ended on August 28, 2000.  NMFS approved Amendment 14 on September 27, 2000. 

Amendment 14 has multiple parts.  The major parts of the amendment revise the Salmon FMP to bring it into compliance with the 1996 SFA amendments to the Magnuson-Stevens Act; establish a new recreational allocation for the Port of La Push, WA, and add flexibility to deviate from specified recreational Port allocations with the agreement of representatives from the affected Ports; and establish preseason flexibility to deviate from commercial and recreational gear allocations and recreational port allocations North of Cape Falcon, OR in order to access marked hatchery salmon in selective fisheries. 

With the approval by the Secretary, Amendment 14 revises the Salmon FMP to bring it into compliance with the 1996 amendments to the Magnuson-Stevens Act.  The most significant changes include a new definition of optimum yield (OY); a bycatch definition and new requirements to reduce bycatch; new requirements designed to prevent overfishing and rebuild overfished stocks; and the designation of EFH, with a discussion of threats to EFH and recommended measures to conserve and enhance EFH.  A new section in chapter 1 entitled “What this Plan Covers” was added to the Salmon FMP to provide a clear description of management actions included in the document.  In addition, the amendment provides information on fishery-specific stock impacts and updates the fishery description to reference new appendices. 

Only some of the changes made by Amendment 14 are intended to be codified in the regulations.  Specifically, this proposed rule would make minor changes to language regarding escapement and management goals; implement a new recreational allocation to the Port of La Push and adjust the Neah Bay allocation accordingly; add preseason flexibility for recreational port allocations North of Cape Falcon; and implement preseason flexibility in setting recreational port allocation or recreational and commercial allocations North of Cape Falcon to take advantage of selective fishing opportunities. 

The former Escapement and Management goals section,  § 660.410(a), was changed to a new Conservation Objectives section.  The SFA amendments require the Council to manage each year to achieve the maximum sustained yield (MSY) or maximum sustainable production (MSP), MSY proxy, or rebuilding schedule.  The control rule triggers an overfishing concern when individual stocks fail to meet conservation objectives for three consecutive years (§ 660.410(b)(1)).  Conservation objectives are summarized in Table 3-1 of the Salmon FMP. 

Amendment 14 establishes a recreational allocation for the La Push Port area separate from the Neah Bay port area, and the Annual Actions section (660.408(c)(v)) would be modified accordingly.  The La Push subarea allocation would be set at 5.2 percent, which is approximately 20 percent of the former combined Neah Bay/La Push allocation.  This portion is equal to the level provided to La Push during the annual preseason process beginning in 1990.  In addition, during years when there is an Area 4B add-on fishery inside Washington internal waters (which benefits only Neah Bay).  Twenty-five percent of the numerical value of that fishery shall be added to the recreational allowable ocean harvest north of Leadbetter Point prior to applying the sharing percentages for Westport and La Push.  The increase to Westport and La Push will be subtracted from the Neah Bay ocean share to maintain the same total harvest allocation north of Leadbetter Point.  Therefore, La Push would receive 2.6 percent of the basic coho allocation plus 1.2 percent of the Area 4B add-on. 

Section 660.408(c)(v)(A) would be modified to allow flexibility to deviate from Salmon FMP subarea quotas in order to meet recreational fishery objectives, if those measures are agreed to by representatives of the affected ports.  In addition, the regulation would establish a Council process to deviate from the non-Indian recreational and/or commercial allocations north of Cape Falcon to selectively harvest hatchery-produced coho salmon, while not increasing impacts to natural stocks. 

Minor changes to the regulatory language in 50 CFR part 660 necessary to implement Amendment 14 would also be made.

## Classification

NMFS has determined that Amendment 14 is consistent with the national standards and other provisions of the Magnuson-Stevens Act and other applicable laws. 

The Council prepared an Initial Regulatory Flexibility Analysis (IRFA) describing the economic impacts to small entities of all the alternatives considered in the this proposed rule.  A copy of the analysis is available from the Council (see ADDRESSES).  A summary of the analysis follows: 

The proposed rule would make five changes to the existing regulations.  Only items 2-5 have regulatory effects that are subject to analysis under Executive Order 12866 and the Regulatory Flexibility Act (RFA).  The regulatory changes include: 
      ( print page 63049)    
1. Minor changes to the description of escapement and   management goals. 

2. Providing a specific recreational allocation to the Port of La Push. 

3. Adjusting the recreational port allocations when there is an Area 4B add-on fishery to account for the specific allocation to the Port of La Push. 

4. Providing preseason flexibility for recreational port allocations to allow for deviation from subarea allocations to meet recreational objectives, if agreed to by representatives of affected ports. 

5.  Adding preseason flexibility for setting recreational port allocations, or recreational and commercial allocations North of Cape Falcon, to selectively target hatchery-origin stocks. 

All of these changes address management of coho and chinook fisheries that operate in ocean waters north of Cape Falcon, OR to the U.S.-Canada Border (Cape Falcon is south of the Columbia River mouth, between the Ports of Garibaldi and Astoria, OR).  Therefore, this proposed rule directly affects the non-tribal commercial troll fisheries and recreational fisheries in these waters.  These fisheries are a component of the North of Cape Falcon Forum, in which Federal, state, and Tribal co-managers work directly with commercial and recreational harvesting groups to resolve management and allocation issues involving both ocean and inside salmon fisheries in the region.  Inside fisheries occur in Puget Sound, Washington coastal rivers and estuaries, and the Columbia River.  Therefore, the Council’s decisions concerning these non-tribal fisheries indirectly affect Columbia River, Willapa Bay, and Grays Harbor gillnet fisheries; Puget Sound, Washington coastal and Columbia River tribal fisheries; and Puget sound non-tribal commercial and recreational fisheries.  In addition to coho and chinook, these inside fisheries also harvest chum, sockeye, and pink salmon.  Management of West Coast ocean salmon fisheries is also subject to international catch sharing agreements because West Coast salmon stocks are among those harvested in Alaska and Canadian salmon fisheries.  Salmon harvest allocations and regulations also affect salmon processors and wholesalers, as well as associated support industries including tourism, hotels, bait and tackle shops, and marinas. 

The economic effects that these proposed regulations would have are described in the Pacific Fishery Management Council’s “Amendment 14 to the Pacific Coast Salmon Plan (May 2000)”  and supporting documents including “Appendix B - Description of the Ocean Salmon Fishery and Its Social and Economic Characteristics (August 1999),” “Review of 1999 Ocean Salmon Fisheries (February 2000) and “Amendment 14 to the Pacific Coast Salmon Plan (1997) [Errata].”  A summary of the economic impacts of this proposed rule follows: 

A fish harvesting or hatchery business is considered a small business if it is independently owned and operated, it does not dominate its field of operations, and if it has annual receipts that are not in excess of $3 million.  For charter/party boats, a small business is one with annual receipts that are not in excess of $5 million.  The proposed changes to existing salmon regulations directly affect the operations of non-tribal commercial ocean troll and charter boat vessels.  Although total salmon and non-salmon fishery revenue is not discussed, for commercial ocean troll and charter boat sectors the economics of this industry suggest that they are considered small entities under the RFA thresholds for a single firm. 

During 1997, the north of Cape Falcon ocean recreational salmon harvest was 31,200 coho and the non-tribal commercial harvest was 0 coho and 6,400 chinook.  Ocean recreational private and charter boat trips numbered approximately 102,000 in 1997, and the 57 vessels that participated in the ocean commercial troll fishery landed $1.2 million of salmon.  Approximately 82 charter boats operated out of the major ports, including Neah Bay, La Push, Westport, Ilwaco, and Astoria, associated with north of Cape Falcon ocean fisheries.  These charter vessels undertook a total of approximately 14,000 angler trips in 1997, and fished for salmon, tuna, bottomfish, sturgeon.  About 70 of these vessels are considered salmon charter boats.  The combined regional income produced by the north of Cape Falcon salmon fisheries was approximately $2.1 million in 1997.  Approximately $200,000 of that amount was generated by commercial trolling, and recreational charter and private boat trips generated the remainder. 

                    The economic effects of the proposed regulations are expected to be generally positive.  The proposed regulatory changes are intended to reallocate fish among small entities with the intent of increasing overall harvest.  The Port of La Push regulations formalize practices that have been employed for a number of years; La Push would receive 2.6 percent of the basic coho allocation plus 1.2 percent of the Area 4B add-on.  Flexibility to deviate from subarea allocations in order to meet recreational objectives is expected to result in only positive economic effects because such management decisions require approval by representatives of affected ports.  Flexibility in setting preseason recreational port allocations or recreational and commercial allocations north of Cape Falcon for selective fishing on hatchery stock coho would likely lead to positive economic effects on ocean fisheries because such measures result in increased fishing opportunities when such fish are available.   These selective fisheries are open primarily in August and September, although the Council may consider opening selective fisheries at other times.  Compared to the original allocation scheme the selective fishery regime does not increase the mortality of natural stocks.  Other allocation objectives (                    *i.e.,*                     treaty, Indian, or ocean and inside allocations) are addressed during the negotiations in the North of Cape of Falcon Forum.                 

The general effects of the proposed regulatory changes are to provide flexibility to the Council’s decision making processes and allow increased fish harvest levels, when possible, through pre-season allocation setting procedures.  User groups (non-tribal ocean troll and ocean recreational fisheries) participate directly in the consultative processes, so it is unlikely that any single group will suffer economically while some or all user groups may benefit.  The consultation process is designed to provide the maximum economic benefits to all user groups. 

The intended effect of this proposed rule is to employ management measures that minimize impacts to species, stocks, or size/age classes of concern, while maximizing access to harvestable fish.  This is accomplished through management measures including gear restrictions, time/area closures, and catch or retention restrictions that allow fishermen to harvest marked hatchery salmon and release natural-origin fish. 

Analysis of 1996 fishery information shows that selective ocean coho harvest could be increased by over 300 percent without impacting natural stocks.  Without such selective fisheries, total salmon harvest would have to be sharply reduced to protect depressed natural stocks.  These procedures also allow managers to make in-season trades between ocean fisheries and other fisheries, and between user groups in order to increase harvest opportunities for all user groups. 

                    Insufficient data preclude a quantitative analysis; however, the Council’s qualitative cost-benefit summary in support of Executive Order 12866 assesses the direct and indirect economic effects of the proposed                           ( print page 63050)                        regulatory changes.  This analysis shows that these changes would allow increased numbers of recreational and charter boat salmon fishing trips; however, recreational catch rates and retained catch rates would decline.  The ocean troll fishery quotas would not be directly reduced as a result of proposed regulatory changes, but cost per unit of harvest may increase because of the selective fishery regulations.  Indirect economic effects on inside fisheries may be positive or negative, depending on which selective fisheries are employed in the ocean and inside fisheries.  The State of Washington has adopted selective fishing practices for inside coho fisheries.  Selective practices for inside chinook fisheries are still under development because of the difficulty in modeling selective fishery impacts on chinook stocks.  However, ocean harvests of inside chinook stocks are minimal and managing such stocks will be primarily driven by Endangered Species Act (ESA) requirements and State of Washington decisions concerning the future of its fisheries.                 

In developing these regulations the Council tried to minimize impacts on small entities.  For example, the Council was aware of the allocative effects of selective fisheries on small entities participating in ocean fisheries, and developed regulations to enhance selective fishing options in August and September.  This limits the amount of reallocation between inside and outside fisheries and therefore reduces impacts on such small entities.  The public is invited to comment on the IRFA and the economic analysis, whether there are additional economic impacts that should be considered, and whether there are ways to reduce any adverse effects on small entities. 

The proposed rule has been determined to be not significant for the purposes of Executive Order 12866. 

The NMFS Northwest Region has completed a Section 7 informal consultation under the Endangered Species Act (ESA) on the effects of Amendment 14 on listed salmon stocks.  Amendment 14 does not by itself authorize any fishing or other activity that would result in the take of listed fish.  It modifies certain aspects of the current Salmon FMP but in no way affects the existing Salmon FMP requirements that management measures comply with NMFS ESA consultation standards for listed species.  Three of the Amendment 14 components (overfishing, EFH, and bycatch) will result in neutral effects or in more conservative management of non-listed salmon stocks, and should therefore provide greater protection to natural stocks of listed and non-listed species.  While there are some uncertainties regarding the effects of selective fisheries on naturally spawning stocks, NMFS retains the authority and responsibility for ensuring that annual management measures developed under the Salmon FMP comply with ESA consultation standards, and that analysis of these measures is based on the best available science.  The remaining elements of the amendment, including recreational allocation, definition of OY, and various editorial changes will have no effect on management of listed stocks. 

Based on these considerations, NMFS concluded that Amendment 14 and its implementing regulations are not likely to adversely affect any of the salmon stocks presently listed under ESA or their critical habitat. 

                    The Council prepared an FSEIS for Amendment 14.  The FSEIS has been incorporated in the Amendment 14 document and may be obtained from the Council (see                     **ADDRESSES**                    ).  A notice of availability of the FSEIS was published on August 11, 2000 (65 FR 49237).                 

                    The President has directed Federal agencies to use plain language in their communications with the public, including regulations.  To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language used in this rule (see                     **ADDRESSES**                    ).                

#  List of Subjects in 50 CFR Part 660

      - Administrative practice and procedure
      - American Samoa
      - Fisheries
      - Fishing
      - Guam
      - Hawaiian Natives
      - Indians
      - Northern Mariana Islands
      - Reporting and recordkeeping requirements

Dated: October 13, 2000.

Clarence Pautzke,

Acting Assistant Administrator,  National Marine Fisheries Service. 

For   the   reasons   set   out   in   the   preamble,   NMFS   proposes   to   amend   50   CFR   part   660   as   follows:

# PART   660— FISHERIES   OFF   WEST   COAST   STATES   AND   IN   THE   WESTERN   PACIFIC

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

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

2.    In   §   660.402,   the   definition   “Pacific   Coast   Salmon   Plan”   is   added   in   alphabetical   order   to   read   as   follows: 

§ 660.402

* * * * *

*Pacific   Coast   Salmon   Plan   (PCSP   or   Salmon   FMP)*                             means   the   Fishery   Management   Plan,   as   amended,   for   commercial   and   recreational   ocean   salmon   fisheries   in   the   Exclusive   Economic   Zone   (EEZ)(3   to   200   nautical   miles   offshore)   off   Washington,   Oregon,   and   California.    The   Salmon   FMP   was   first   developed   by   the   Pacific   Fishery   Management   Council   (PFMC   or   Council)   and   approved   by   the   Secretary   in   1978.    The   Salmon   FMP   was   amended   on   October   31,   1984,   to   establish   a   framework   process   to   develop   and   implement   fishery   management   actions.    Other   names   commonly   used   include:    Pacific   Coast   Salmon   Fishery   Management   Plan,   West   Coast   Salmon   Plan,   West   Coast   Salmon   Fishery   Management   Plan.                        

* * * * *

3.    In   §   660.408,   the   first   two   sentences   in   paragraph   (c)(1)(ii),   paragraph   (c)(1)(v),   paragraph   (c)(1)(v)(A),   and   the   last   sentence   in   paragraph   (c)(1)(vi)   are   revised;   paragraph   (c)(1)(viii)   is   redesignated   as   paragraph   (c)(1)(ix),   and   paragraph   (c)(1)(ix)   is   redesignated   as   paragraph   (c)(1)(x)   and   a   new   paragraph   (c)(1)(viii)   is   added   to   read   as   follows: 

§   660.408

* * * * *

 (c)   *   *   *

(1)   *   *   *

                        (ii)                         *Deviations   from   allocation   schedule*.    The   initial   allocation   may   be   modified   annually   in   accordance   with   paragraphs   (c)(1)(iii)   through   (viii)   of   this   section.    These   deviations   from   the   allocation   schedule   provide   flexibility   to   account   for   the   dynamic   nature   of   the   fisheries   and   better   achieve   the   allocation   objectives   and   fishery   allocation   priorities   in   paragraphs   (c)(1)(ix)   and   (x)   of   this   section.   *   *   *                     

* * * * *

                        (v)                         *Recreational   allocation*.    The   recreational   allowable   ocean   harvest   of   chinook   and   coho   derived   during   the   preseason   allocation   process   will   be   distributed   among   the   four   major   recreational   subareas   as   described   in   the   coho   and   chinook   distribution   in this section.    The   Council   may   deviate   from   subarea   quotas   to   meet   recreational   season   objectives   based   on   agreement   of   representatives   of   the   affected   ports   and/or  in   accordance   with   Section   6.5.3.2   of   the   Pacific   Coast   Salmon   Plan   with   regard   to   certain   selective   fisheries.    Additionally,   based   upon   the   recommendation   of   the   recreational   Salmon   Advisory   Subpanel   representatives   for   the   area   north   of   Cape   Falcon,   the   Council   will   include   criteria   in   its   preseason   salmon   management   recommendations   to   guide   any   inseason   transfer   of   coho   among   the                               ( print page 63051)                             recreational   subareas   to   meet   recreational   season   duration   objectives.                     

                        (A)                         *Coho   distribution*.    The   preseason   recreational   allowable   ocean   harvest   of   coho   north   of   Cape   Falcon   will   be   distributed   to   provide   50   percent   to   the   area   north   of   Leadbetter   Point   and   50   percent   to   the   area   south   of   Leadbetter   Point.    In   years   with   no   fishery   in   Washington   State   management   area   4B,   the   distribution   of   coho   north   of   Leadbetter   Point   will   be   divided   to   provide   74   percent   to   the   subarea   between   Leadbetter   Point   and   the   Queets   River   (Westport),   5.2   percent   to   the   subarea   between   Queets   River   and   Cape   Flattery   (La   Push),   and   20.8   percent   to   the   area   north   of   the   Queets   River   (Neah   Bay).    In   years   when   there   is   an   Area   4B   (Neah   Bay)   fishery   under   state   management,   25   percent   of   the   numerical   value   of   that   fishery   shall   be   added   to   the   recreational   allowable   ocean   harvest   north   of   Leadbetter   Point   prior   to   applying   the   sharing   percentages   for   Westport   and   La   Push.    The   increase   to   Westport   and   La   Push   will   be   subtracted   from   the   Neah   Bay   ocean   share   to   maintain   the   same   total   harvest   allocation   north   of   Leadbetter   Point.    Each   of   the   four   recreational   port   area   allocations   will   be   rounded   to   the   nearest   hundred   fish,   with   the   largest   quotas   rounded   downward   if   necessary   to   sum   to   the   preseason   recreational   allowable   ocean   harvest   of   coho   north   of   Cape   Falcon.                    

*   *   *   *   *

                         (vi)                         *Inseason   trades   and   transfers*.   *   *   *  Inseason   trades   or   transfers   may   vary   from   the   guideline   ratio   of   four   coho   to   one   chinook   to   meet   the   allocation   objectives   in   paragraph   (c)(1)(ix)   of   this   section.                     

*   *   *   *   *

                        (viii)                         *Selective   Fisheries*.    Deviations   from   the   initial   gear   and   port   area   allocations   may   be   allowed   to   implement   selective   fisheries   for   marked   salmon   stocks   as   long   as   the   deviations   are   within   the   constraints   and   process   specified   in   Section   6.5.3.2   of   the                         *Pacific   Coast   Salmon   Plan*.                    

*   *   *   *   *

4.    In   §   660.410,   the   section   heading,   paragraphs   (a)   and   (b)(1)   are   revised   to   read   as   follows: 

 §   660.410

(a)   The   conservation   objectives   are   summarized   in   Table 3-1 of the   Pacific   Coast   Salmon   Plan.

(b)   *   *   *

(1)   A   comprehensive   technical   review   of   the   best   scientific   information   available   provides   conclusive   evidence   that,   in   the   view   of   the   Council,   the   Scientific   and   Statistical   Committee,   and   the   Salmon   Technical   Team,   justifies   modification   of   a   conservation   objective;   except   that   the   35,000   natural   spawner   floor   for   Klamath   River   fall   chinook   may   only   be   changed   by   FMP   amendment.

* * * * *

[FR Doc. 00-26935 Filed 10-19-00; 8:45 am]

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