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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

# AGENCY:

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

# ACTION:

Final rule.

# 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                               ( print 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, § 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                           ( print 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.*
      ( print page 29241)    
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 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) 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: 

§ 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 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 § 660.410, the section heading and 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 be changed only by  amendment.

* * * * *

[FR Doc. 01-13431 Filed 5-29-01; 8:45 am]

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