[Federal Register Volume 59, Number 85 (Wednesday, May 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10721]


[[Page Unknown]]

[Federal Register: May 4, 1994]


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DEPARTMENT OF COMMERCE
50 CFR Part 661

[Docket No. 940120-4123, I.D. 011094A]
RIN 0648-AE05

 

Ocean Salmon Fisheries Off the Coasts of Washington, Oregon, and 
California

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

ACTION: Final rule.

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SUMMARY: The Secretary of Commerce issues this final rule to implement 
Amendment 11 (Amendment) to the Fishery Management Plan for Commercial 
and Recreational Salmon Fisheries Off the Coasts of Washington, Oregon, 
and California (FMP). The Amendment modifies the spawning escapement 
goal for Oregon coastal natural (OCN) coho salmon and the criteria for 
establishing and managing subarea allocations for recreational coho 
salmon harvest south of Cape Falcon, OR. The Amendment is intended to: 
(1) Address persistent low OCN coho stock abundance and annual 
escapement goals below maximum sustainable yield (MSY), (2) prevent 
imbalances in recreational coho harvest allocation at low allowable 
harvest levels, and (3) prevent the frequent use of emergency 
rulemaking to implement annual management measures.

EFFECTIVE DATE: April 29, 1994.

ADDRESSES: Copies of the Amendment, including the environmental 
assessment and the regulatory impact review/initial regulatory 
flexibility analysis, are available from Lawrence D. Six, Executive 
Director, Pacific Fishery Management Council (PFMC), Metro Center, 
Suite 420, 2000 SW. First Avenue, Portland, OR 97201-5344.

FOR FURTHER INFORMATION CONTACT: William L. Robinson (Northwest Region, 
NMFS) at 206-526-6140, Rodney R. McInnis (Southwest Region, NMFS) at 
310-980-4040, or Lawrence D. Six (PFMC) at 503-326-6352.

SUPPLEMENTARY INFORMATION: The ocean salmon fisheries in the exclusive 
economic zone of the United States (3 to 200 miles offshore) in the 
Pacific Ocean off the coasts of Washington, Oregon, and California are 
managed under the FMP. The FMP was developed by the Pacific Fishery 
Management Council (Council) under the Magnuson Fishery Conservation 
and Management Act, 16 U.S.C. 1801 et seq. (Magnuson Act), and approved 
by the Secretary of Commerce (Secretary) in 1978. Since then, the FMP 
has been amended 10 times, with implementing regulations codified at 50 
CFR part 661. From 1979 to 1983, the FMP was amended annually. In 1984, 
a framework amendment was implemented that provided the mechanism for 
making preseason and inseason adjustments in the regulations without 
annual amendments. Amendments to the framework FMP were implemented in 
1987, 1988, 1989, and 1991.
    The Council prepared the Amendment to the FMP and submitted it to 
the Secretary for approval under the provisions of the Magnuson Act. On 
January 10, 1994, the Secretary began formal review of the Amendment. A 
notice of availability and a proposed rule were published in the 
Federal Register on January 21, 1994 (59 FR 3327), and February 2, 1994 
(59 FR 4895), respectively. The preamble for the proposed rule 
discussed the rationale for the proposed amendment. The comment period 
on the Amendment ended March 10, and on the proposed rule March 21, 
1994; two written comments were received. The Amendment was approved on 
April 6, 1994.
    As implemented by this final rule, the Amendment modifies the 
spawning escapement goal for OCN coho salmon. The OCN coho stock is 
composed of naturally produced coho salmon from Oregon coastal streams. 
OCN coho are important contributors to the ocean harvest, as the stock 
aggregate constitutes the largest component of naturally produced coho 
caught in ocean salmon fisheries off Oregon and California.
    The modified escapement goal is intended to achieve an aggregate 
OCN adult spawning density of 42 naturally spawning adults per mile in 
standard index survey areas each year. The standard index survey areas 
are 48 different stream sections that have been surveyed by the Oregon 
Department of Fish and Wildlife (ODFW) each year since 1950. Under the 
current methods used by ODFW, the spawners in the standard index area 
are extrapolated for 4,764 miles of coastal spawning habitat. This 
translates to a numerical spawning escapement goal of 200,000. The 
original FMP spawning escapement goal of 200,000 was based on this 
extrapolation. This number of adult spawners per mile was documented as 
the estimated MSY spawning escapement level in an ODFW study of coastal 
stream spawning escapements and subsequent production from 1950 to 
1980.
    The Amendment also provides that when OCN coho abundance is 
forecast to be less than 125 percent of the annual numerical escapement 
goal, or below 250,000 fish at the present spawner escapement goal of 
200,000 adults, an incidental exploitation rate of up to 20 percent 
will be allowed for ocean and freshwater fisheries targeting on non-OCN 
coho salmon stocks.
    When the predicted OCN coho spawning escapement is 28 or less 
adults per mile in standard index areas, the Council may allow only an 
incidental exploitation rate of up to 20 percent. The Council will 
evaluate the actual level of incidental harvest of OCN coho that might 
be expected to occur in fisheries for chinook salmon and non-OCN coho 
salmon and will recommend only the minimum incidental harvest rate 
necessary to prosecute other fisheries, provided that that rate will 
cause no irreparable harm to the OCN coho stock.
    The Amendment also modifies the criteria for establishing and 
managing subarea allocations for recreational coho salmon harvest south 
of Cape Falcon, OR, when the allowable recreational coho allocation for 
the entire area is equal to or less than 167,000 fish. The Amendment 
establishes two subareas with independent impact quotas to ensure that 
a large southward shift in the recreational harvest does not occur. Of 
the total recreational allocation, the subarea from Cape Falcon to 
Humbug Mountain, Oregon, receives 70 percent and the subarea south of 
Humbug Mountain receives 30 percent, the purpose being to avoid large 
deviations from historical harvest shares. The two subareas will be 
managed for their respective impact quotas; the recreational fisheries 
for coho salmon in each area may be closed upon attainment of the quota 
except for the area south of Point Arena, California (38 deg.57'30'' N. 
lat.). South of Humbug Mountain, there are two additional conditions: 
(1) An impact guideline of 3 percent of the overall recreational 
allocation south of Cape Falcon will be applied from Horse Mountain to 
Point Arena, California; and (2) the recreational fishery for coho 
salmon will not be closed south of Point Arena, even if the fishery 
between Humbug Mountain and Point Arena is closed, upon projected 
attainment of the south of Humbug Mountain impact quota; but the 
projected harvest through the end of the year will be included in the 
south of Humbug Mountain impact quota. Quota transfers between subareas 
are allowed on a one-for-one basis, but only if chinook constraints 
preclude access to coho.
    At its March 8-11, 1994, meeting the Council considered and adopted 
management options for annual ocean salmon fisheries under the 
assumption that the Amendment and its implementing regulations would be 
in place when coastwide ocean salmon fishing seasons open on May 1, 
1994, as regularly scheduled. During this meeting, the Council 
clarified its intent regarding the fishing allowed when the spawner 
escapement is less than or equal to 28 coho per mile in the standard 
index areas. Under the existing plan, no fishing would have been 
allowed at that level of spawner escapement. This is a standard that is 
more restrictive than under the Endangered Species Act (ESA), which 
allows some incidental take of listed stocks. Therefore, the Amendment 
will allow an incidental exploitation rate of up to 20 percent that 
will provide only the minimum incidental harvest necessary to prosecute 
other fisheries, and that under no circumstances will cause irreparable 
harm to the OCN coho stock. This standard of the minimum incidental 
harvest and no irreparable harm replaces other allocative measures in 
the plan regarding OCN coho at spawner escapement levels at or below 28 
spawners per mile.
    Implementation of the Amendment requires changes to the regulatory 
language in the Appendix to 50 CFR part 661. The only change to the 
proposed regulations published on February 2, 1994, clarifies this 
issue of allocation at low spawner levels by adding language in 
paragraph 2(b)(i) of Appendix section II.B.

Comments and Responses

    Two written comments on the Amendment were submitted representing 
three individuals and two organizations, the Environmental Defense Fund 
and the Northwest Forest Resource Council.
    Comment: The spawning escapement goal proposed in the Amendment and 
the proposed rule does not adequately reflect documented declines in 
fish size, fecundity, survival rates, ocean production, and rainfall 
since 1979. The spawning escapement goal of 200,000 adults is most 
likely inadequate.
    Response: The OCN coho stock has been the subject of ongoing review 
under the Council management process, which requires using the best 
scientific information and methodology available. There are several 
reasons for the consistent and significant depression in the OCN coho 
stock, but determination of a primary cause is not currently possible 
given the inadequacies in the information available on the stock and 
its habitat. Additional studies may provide a better definition of the 
total OCN coho spawning population. The ODFW is currently in the fourth 
year of a 5-year study of the methodology used in estimating OCN coho 
escapements. The results of that study, coupled with any additional 
biological data, will be used to develop a biologically sounder OCN 
coho escapement goal. Implementation of the Amendment does not hinder 
further investigations on the appropriateness of the numerical goal of 
200,000 adults. The proposed rule anticipated revision to the spawning 
escapement goal, including the 200,000 number, by describing the 
processes by which the goal would be revised. If the estimated total 
number of spawners at the MSY level that is calculated by extrapolating 
from the 42 adults per mile in the standard index survey areas is 
revised, further changes to the FMP or its implementing regulations 
would not be necessary. If the number (42) of adult spawners per mile 
in the standard index survey areas is revised, the FMP would need to be 
amended. The framework in 50 CFR part 661, Appendix IV.B. provides for 
the modification of escapement goals based on technical evidence.
    Comment: Individual escapement goals should be set for the 
northern, central, and southern regional aggregates of OCN coho stocks.
    Response: The Salmon Technical Team has expressed its concern that 
the unequal distribution of spawners along the Oregon coast may be an 
important factor in recent OCN stock status declines. The Council 
recognizes the problem, but there are insufficient data at this time to 
implement separate escapement goals by subdividing the OCN stock 
aggregate. This matter will be subject to further analysis.
    Comment: The escapement goal should be increased by 10 percent to 
hedge against impacts of harvest on genetic diversity and ecosystem 
integrity.
    Response: The 200,000-fish MSY escapement goal has not been met for 
a number of years, and does not appear to be attainable in 1994. 
Because the goal represents an optimal production level and not a 
conservation threshold, it provides for substantial genetic diversity. 
Although there does not appear to be a statistical basis for any 
particular level of additional conservatism, NMFS agrees that, when 
stock sizes are such that the number of spawners is forecast to be 
below 28 per mile when directed fisheries are not allowed, substantial 
conservatism should be used when allowing incidental impacts for other 
fisheries.
    Comment: Allowable incidental take should be reduced to a maximum 
of 10 percent to prosecute other fisheries, and should only be allowed 
when abundance is between 225,000 and 150,000 fish. No incidental take 
should be allowed that would result in escapement below the escapement 
floor (28 spawners per mile) until scientific information establishes 
that incidental take that violates the floor would not result in 
irreparable harm.
    Response: The maximum incidental exploitation rate of 20 percent 
provides flexibility during the annual preseason management process for 
structuring fishing seasons to access salmon stocks with allowable 
harvest levels. Flexibility is also needed to account for harvest 
impacts by fisheries outside the Council's purview (e.g., freshwater 
fisheries and Canadian fisheries). NMFS will rely on the annual 
management process to determine the appropriate level of allowable 
incidental take. As with any management measure recommended by the 
Council, NMFS will consider comments by the Council, its advisers, and 
the public before implementing an incidental harvest rate. The Regional 
Director will provide guidance to the Council on an appropriate rate 
after consideration of the available information as supported by the 
administrative record. The Council demonstrated its ability to exercise 
harvest restraint on OCN coho, as in 1991, 1992, and 1993, when it 
recommended emergency regulations to reduce the ocean harvest rate on 
OCN coho from the levels set in Amendment 7 to the FMP. For the 1994 
season, the Council recommended management measures with an incidental 
harvest rate of 11 percent. The standard of the minimum incidental 
harvest and no irreparable harm replaces other allocative measures in 
the plan regarding OCN coho at spawner escapement levels at or below 28 
spawners per mile.
    Comment: A reduction in the body size of salmon could cause a 
significant reduction in fish productivity and subsequent declines in 
stock abundance. The direct relationship between fecundity and fish 
size has been established in prior research. Yet the proposed spawning 
escapement goal has not taken this relationship into account.
    Response: The OCN spawning escapement goal is based on data from 
many series of years. Body size and fecundity undoubtedly varied 
depending on ocean feeding conditions, with returning spawners being 
both above and below the average body size and fecundity for the time 
series. The spawning escapement goal is based on average conditions, 
which take into account this variability. Since fishery managers cannot 
predict whether body size will be larger or smaller than normal prior 
to the fish appearing in the catch and on the spawning grounds, it is 
not practical to adjust either the fishing seasons or the annual 
spawning escapement goals to account for body size. The spawning 
escapement goal implemented by the Amendment assumes average conditions 
and is set at a level to accommodate annual variations.
    Comment: The Amendment fails to require measures or research for 
reducing the incidental take of OCN coho.
    Response: Measures for reducing the incidental take of OCN coho are 
addressed during the annual process for setting management measures. 
The Council is currently reviewing its list of research and data needs, 
which includes improving estimates of commercial troll shaker 
mortality. These estimates will be determined by contact rates in 
various fisheries. The Council will continue to consider new 
information as it becomes available, in developing ways to reduce this 
mortality through gear selectivity or modification. The Council 
determined that the Amendment provides the best approach at the present 
time, given the currently available information.
    Comment: The Amendment establishes OCN coho numerical annual 
spawning escapement goals at the expense of remaining wild stocks of 
coho salmon.
    Response: The OCN spawning escapement goal implemented by this 
amendment is based solely on wild fish. Current hatchery practices are 
designed to discourage the intermixing of wild and hatchery stocks. 
Although some intermixing probably occurs, it is thought to be a small 
enough proportion of the total spawning population that it does not 
adversely affect the production of wild coho salmon.
    Comment: A supplemental environmental impact statement (SEIS) on 
the FMP should be prepared incorporating new scientific information 
concerning coho and other salmon since the last SEIS was prepared in 
1984.
    Response: The environmental assessment (EA) for the Amendment was 
prepared in accordance with NOAA Administrative Order 216-6 on 
Environmental Review Procedures. The Assistant Administrator for 
Fisheries, NOAA (AA), reviewed the EA and concluded that this action 
will not significantly affect the human environment. Therefore, 
preparation of an SEIS is not required. While new information on salmon 
stocks has been developed since the last SEIS, prepared for the 
framework amendment to the FMP in 1984, there is not sufficient new 
information specific to the OCN coho stock to warrant preparation of an 
SEIS for this action. Under the ESA process, a thorough evaluation of 
salmon stocks in Washington, Oregon, and California is being conducted 
that may result in preparation of at least one SEIS for the FMP.

Classification

    This rule has been determined to be ``not significant'' for 
purposes of E.O. 12866.
    The Assistant Administrator determined that this rule will have a 
significant economic impact on a substantial number of small entities 
for purposes of the Regulatory Flexibility Act. The Council prepared a 
regulatory impact review (RIR) and an initial regulatory flexibility 
analysis (IRFA) that are incorporated in the Amendment document and may 
be obtained from the Council (see ADDRESSES). A summary of the RIR/IRFA 
was published on February 2, 1994 (59 FR 4897). No public comments were 
received relating to small entities and no changes were made in the 
initial document. Therefore, the document will now serve as a final 
regulatory flexibility analysis (FRFA).
    The AA determined that this rule must be effective no later than 
May 1, 1994, when coastwide ocean salmon fishing seasons are scheduled 
to open. Therefore, it is impracticable and contrary to the public 
interest to delay for 30 days the effective date of this final rule, 
and the agency finds good cause to waive the delayed effectiveness 
provision (5 U.S.C. 553(d)(3)) of the Administrative Procedure Act.

List of Subjects in 50 CFR Part 661

    Fisheries, Fishing, Indians, Reporting and recordkeeping 
requirements.

    Dated: April 29, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 661 is amended 
as follows:

PART 661--OCEAN SALMON FISHERIES OFF THE COASTS OF WASHINGTON, 
OREGON, AND CALIFORNIA

    1. The authority citation for part 661 continues to read as 
follows:

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

    2. In the appendix to part 661, in section II.B., three new 
sentences are added to the end of paragraph 2(b)(i), and a new 
paragraph 2(b)(v) is added to read as follows:

Appendix

* * * * *

II. Annual Changes to Management Specifications

* * * * *

B. Procedures for Establishing and Adjusting Annual Management 
Measures.

* * * * *
    2. Allocation of ocean harvest levels.
* * * * *
    (b) Coho south of Cape Falcon. (i) * * * The recreational 
allowable ocean harvest will be distributed between the two major 
recreational subareas when the recreational allocation is equal to 
or less than 167,000 fish, in accordance with paragraph 2(b)(v) of 
this appendix. At OCN spawning escapements of 28 or fewer adults per 
mile, the allocation provisions of paragraph 2(b) of this appendix 
do not apply. Fisheries will be established that will provide only 
the minimum incidental harvest of OCN coho necessary to prosecute 
other fisheries, and that under no circumstances will cause 
irreparable harm to the OCN stock.
* * * * *
    (v) When the recreational allocation is at 167,000 fish or less, 
the total recreational allowable ocean harvest of coho will be 
divided between two major subareas with independent impact quotas. 
The initial allocation will be 70 percent from Cape Falcon to Humbug 
Mountain and 30 percent south of Humbug Mountain. Coho transfers 
between the two impact quotas may be permitted on a one-for-one 
basis, if chinook constraints preclude access to coho. Horse 
Mountain to Point Arena will be managed for an impact guideline of 3 
percent of the south of Cape Falcon recreational allocation. The 
recreational coho fishery between Humbug Mountain and Point Arena 
may be closed when it is projected that the harvest impact between 
Humbug Mountain and Point Arena, combined with the projected harvest 
impact that will be taken south of Point Arena to the end of the 
season, equals the impact quota for south of Humbug Mountain. The 
recreational fishery for coho salmon south of Point Arena will not 
close upon attainment of the south of Humbug Mountain impact quota.
* * * * *
    3. In the appendix to part 661, in section IV.A., the table 
``Summary of Specific Management Goals for Stocks in the Salmon 
Management Unit'' is amended by revising the entry for Columbia River 
and Oregon Coastal Coho and its footnote 4 to read as follows:

IV. Escapement Goals

    A. * * * 

Summary of Specific Management Goals for Stocks in the Salmon Management
                                  Unit                                  
------------------------------------------------------------------------
       System                    Spawning escapement goal\1\            
------------------------------------------------------------------------
                                                                        
                                  *****                                 
Columbia River and    Oregon coastal natural (OCN) coho spawning        
 Oregon Coastal Coho.  escapement is based on an aggregate density of 42
                       naturally spawning adults per mile in standard   
                       index survey areas\4\                            
                                                                        
                                 *****                                  
------------------------------------------------------------------------
\1\Represents adult natural spawning escapement goal for viable natural 
  stocks or adult hatchery return goal for stocks managed for artificial
  production.                                                           
                                                                        
*****                                                                   
\4\At OCN stock sizes below 125 percent of the annual numerical         
  escapement goal, an exploitation rate of up to 20 percent will be     
  allowed for incidental impacts of the combined ocean troll, sport, and
  freshwater fisheries. At OCN spawning escapements of 28 or fewer      
  adults per mile, an exploitation rate of up to 20 percent may be      
  allowed to provide only minimum incidental harvest to prosecute other 
  fisheries, provided the rate chosen will cause no irreparable harm to 
  the OCN stock.                                                        
                                                                        
 *****                                                                  

[FR Doc. 94-10721 Filed 4-29-94; 3:43 pm]
BILLING CODE 3510-22-P