[Federal Register Volume 66, Number 104 (Wednesday, May 30, 2001)]
[Rules and Regulations]
[Pages 29238-29241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13431]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 000906253-1117-02; I.D. 061500E]
RIN 0648-AL51


Fisheries off West Coast States and in the Western Pacific; West 
Coast Salmon Fisheries; Amendment 14

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule 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). This final rule makes minor changes to language regarding 
spawning escapement and management goals; implements a new recreational 
allocation to the Port of La Push and adjusts the Neah Bay allocation 
accordingly; adds preseason flexibility for recreational port 
allocations north of Cape Falcon; and implements preseason flexibility 
in setting recreational port allocations or recreational and commercial 
allocations north of Cape Falcon to take advantage of selective fishing 
opportunities for marked hatchery fish. The intended effect of this 
final rule is to employ management measures that minimize impacts to

[[Page 29239]]

species, stocks, or size/age classes of concern, while maximizing 
access to harvestable fish.

DATES: Effective June 29, 2001.

ADDRESSES: Copies of Amendment 14, the final supplemental environmental 
impact statement (FSEIS)/regulatory impact review (RIR)/initial 
regulatory flexibility analysis (IRFA), and the appendices, including 
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.
    Copies of the final regulatory flexibility analysis (FRFA) are 
available from Donna Darm, Acting Regional Administrator, Northwest 
Region, NMFS, 7600 Sand Point Way N.E., Seattle, WA 98115-0070, fax: 
206-526-6376; or Rebecca Lent, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 
90802-4213, fax: 562-980-4018.

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 14 
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 FMP 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. 
The proposed rule was published in the Federal Register on October 20, 
2000 (65 FR 63047), with the 45-day public comment period ending on 
December 4, 2000. NMFS received one comment; the comment addressed 
provisions of Amendment 14 that were not the subject of the proposed 
rule. The final rule remains unchanged from the proposed rule.
    Only some parts of Amendment 14 are codified in the final rule. 
Those parts not codified revise the Salmon FMP to bring it into 
compliance with the Sustainable Fisheries Act's (SFA) 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 
Essential Fish Habitat (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.
    Those parts of Amendment 14 codified in the final rule make minor 
changes to language regarding escapement and management goals; 
implement a new recreational allocation to the Port of La Push and 
adjusts 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, 
Sec. 660.410(a), was changed to a new ``Conservation Objectives'' 
section.
    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)) was modified accordingly. The La Push subarea 
allocation is now 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), 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. 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) was 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 establishes 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 were also made.

Comments and Responses

    NMFS received one comment regarding the proposed rule; however, 
this comment did not refer to the changes proposed in the rule.
    Comment: The National Association of Home Builders (NAHB) et al., 
represented by Perkins Coie, LLP, commented on the portion of Amendment 
14 that deals with EFH. The NAHB believes that the EFH provisions in 
Amendment 14 should be included in the proposed rule and that an IRFA 
should have been prepared for them.
    Response: The proposed rule includes only those regulatory changes 
needed to implement Amendment 14. The designation of EFH by Amendment 
14 does not require implementing regulations, and therefore, an IRFA is 
not required. The RFA only requires completion of regulatory 
flexibility analyses when an agency promulgates regulations. Under the 
Magnuson-Stevens Act, an FMP must describe and identify EFH, but 
implementing regulations for an EFH designation are not required. If 
implementing regulations are required in the future (for example, to 
avoid adverse effects on EFH caused by fishing), regulatory flexibility 
analyses may be prepared in accordance with applicable law.

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 IRFA describing the economic impacts to 
small entities of all the alternatives considered in the proposed rule. 
No comments were received on the IRFA, except as described above. A 
copy of the

[[Page 29240]]

IRFA is available from the Council (see ADDRESSES).
    NMFS, Northwest Region, prepared an FRFA based on the IRFA in 
compliance with 5 U.S.C. 604(a). The FRFA indicated that the rule will 
not have a significant economic impact on a substantial number of small 
entities. A copy of the FRFA is available from NMFS (see ADDRESSES). A 
summary of the FRFA follows:
    The economic effects of the regulations are expected to be 
generally positive. The 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. 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 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 would likely benefit. The 
consultation process is designed to provide the maximum economic 
benefits to all user groups.
    The intended effect of this final 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 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 
regulatory changes. This analysis shows that these changes would allow 
increased numbers of recreational and charter boat salmon fishing 
trips. If this is realized, aggregate catch would increase, but 
depending on the magnitude of increase in the number of recreational 
and charter trips, individual catch per trip could decline. The ocean 
troll fishery quotas would not be directly reduced as a result of the 
regulatory changes, but cost per unit of harvest may increase because 
of the selective fishery regulations. Indirect economic effects on 
inside fisheries (fisheries occurring in state internal waters) 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.
    The final 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 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. It provides an 
updated description of the fishery, and clarifies what is covered in 
the Salmon FMP. To be consistent with the SFA, it redefines optimum 
yield, provides new criteria to prevent or end overfishing, describes 
and defines essential fish habitat, and establishes salmon bycatch 
reporting specifications. 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).

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.

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

    Dated: May 21, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, NMFS amends 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.

[[Page 29241]]


    2. In Sec. 660.402, the definition ``Pacific Coast Salmon Plan'' is 
added in alphabetical order to read as follows:


Sec. 660.402  Definitions.

* * * * *
    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 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 Sec. 660.408, the first two sentences in paragraph 
(c)(1)(ii), paragraph (c)(1)(v) and 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:


Sec. 660.408  Annual actions.

* * * * *
    (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 sections below. 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, regarding 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 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 Sec. 660.410, the section heading and paragraphs (a) and 
(b)(1) are revised to read as follows:


Sec. 660.410  Conservation objectives.

    (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 be changed only by amendment.
* * * * *
[FR Doc. 01-13431 Filed 5-29-01; 8:45 am]
BILLING CODE 3510-22-S