[Federal Register Volume 69, Number 4 (Wednesday, January 7, 2004)]
[Rules and Regulations]
[Pages 875-878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-327]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030314059-3326-03; I.D. 062003A]
RIN 0648-AQ48


Fisheries of the Exclusive Economic Zone (EEZ) Off Alaska; Salmon 
Fisheries off the Coast of Alaska

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to correct the definition of the area 
in which salmon fishing regulations implementing the Fishery Management 
Plan for the Salmon Fisheries in the EEZ off the Coast of Alaska 
(Salmon FMP) apply, to remove the words ``high seas'' wherever they 
appear in the salmon fishing regulations, and to remove an obsolete 
reference to the North Pacific Fisheries Act of 1954 from the salmon 
fishing regulations. This action is necessary to fully implement 
Amendment 3 to the Salmon FMP. The intended effect of this action is 
regulatory consistency with the provisions of Amendment 3 to the Salmon 
FMP and improved conservation and management of the salmon fisheries 
off the coast of Alaska.

DATES: Effective February 6, 2004.

ADDRESSES: Copies of the Regulatory Impact Review (RIR) may be obtained 
from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802 1668, 
Attn: Lori Durall, 907-586-7247.

FOR FURTHER INFORMATION CONTACT: Patsy A. Bearden, 907-586-7228 or e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The salmon fishery in the EEZ off the Coast of Alaska is managed 
pursuant to the Salmon FMP prepared by the North Pacific Fishery 
Management Council (Council) under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. 
Implementing regulations originally appeared at 50 CFR part 674.
    The original Salmon FMP provided for the management of the salmon 
fisheries throughout the EEZ off the coast of Alaska except for the 
extreme western part of the EEZ west of 175[deg] E. long., near Attu 
Island. This [deg]extreme western part of the EEZ was excluded because 
this area was then under the jurisdiction of the International 
Convention for the High Sea Fisheries of the North Pacific Ocean. The 
original name of the salmon FMP was the ``Fishery Management Plan for 
the High Seas Salmon Fishery off the Coast of Alaska East of 175 
Degrees East Longitude.''
    Over time, the international regime affecting salmon fisheries 
changed and the Council revisited its salmon management policies. In 
1989, the Council adopted Amendment 3 to the FMP which, among other 
things, renamed the FMP to ``Fishery Management Plan for the Salmon 
Fisheries in the EEZ off the Coast of Alaska,'' deferred regulation of 
the salmon fisheries in the EEZ to the State of Alaska, and extended 
the geographic jurisdiction of the Salmon FMP over waters of the EEZ 
west of 175[deg] E. long. The Secretary of Commerce (Secretary) 
approved Amendment 3 to the FMP in 1990, and published a final rule on 
November 15, 1990 (55 FR 47773), implementing associated measures and 
removing all the specific management measures from 50 CFR part 674. The 
1990 implementing regulations inaccurately omitted both the new title 
of the FMP and the extension of the geographic jurisdiction of the FMP. 
No public comment was received on this or on any of the other changes 
made by Amendment 3, and the entire amendment was non-controversial.
    In compliance with required consolidation of all Federal fishery 
regulations pursuant to President Clinton's Regulatory Reform 
Initiative, NMFS combined all existing fisheries regulations for the 
EEZ off Alaska, including part 674, into a new 50 CFR part 679 (62 FR 
19686, April 23, 1997). This final rule recodified the two regulatory 
provisions that NMFS erroneously failed to revise in its 1990 
rulemaking that implemented Amendment 3. Moreover, NMFS erred again in 
the regulatory consolidation by redefining the ``High Seas Salmon 
Management Area'' as ``the portion of the EEZ off Alaska east of 
175[deg] E. long.'' This new error reinstated the definition of the 
Salmon FMP management area

[[Page 876]]

effective prior to approval of Amendment 3 by eliminating waters west 
of 175 degrees east longitude from the management area. Consequently, 
the current regulations implementing the Salmon FMP fail to give 
regulatory effect to the expansion of geographic jurisdiction adopted 
in Amendment 3.
    NMFS published a correction notice in the Federal Register on July 
1, 2002 (67 FR 44093), to change the name of the Salmon FMP as it 
appears in 50 CFR 679.1(i) to be consistent with the Salmon FMP as 
amended and approved by the Secretary.
    NMFS published a proposed rule in the Federal Register on July 23, 
2003 (68 FR 43483), which described the proposed regulatory amendment 
to correctly describe the geographic jurisdiction of the Salmon FMP, to 
remove the words ``high seas'' wherever they appear in the salmon 
fishing regulations, and to remove an obsolete reference to the North 
Pacific Fisheries Act of 1954 from the salmon fishing regulations. 
Comments were invited from the public through August 22, 2003. NMFS 
received one comment letter on the proposed rule which is summarized 
below:
    Comment: NMFS approved the Salmon FMP in 1979 to implement the 
Federal Government's authority over the salmon troll fishery off the 
coast of Southeast Alaska. The troll fishery had previously been 
managed by the State of Alaska, and a significant amount of the effort 
occurred on the Fairweather Grounds, in what was then called the 
Fishery Conservation Zone (FCZ), now the EEZ. The primary regulatory 
provision of the Salmon FMP was establishment of a federal permit 
system, which is now codified at 50 CFR 679.4(h). When the Salmon FMP 
was amended in 1990, it expressly stated in Section 2.2.2 that fishing 
in three ``historical'' net fisheries managed by the State of Alaska 
pursuant to the North Pacific Fisheries Act and 50 CFR part 210 was not 
subject to the prohibition on fishing in the West Area.
    Appendix C of the Salmon FMP elaborated this intent and delineated 
the boundaries of the three fisheries at False Pass (South Peninsula), 
Cook Inlet, and Copper River. The regulations implementing the amended 
Salmon FMP captured this intent in a provision now codified at 50 CFR 
679.7(h)(1), which provides that it is unlawful to fish for salmon ``in 
violation of the North Pacific Fisheries Act of 1954.'' The inference 
is that fishing in compliance with the North Pacific Fisheries Act that 
is, in the three ``historic'' net fisheries that technically extend 
into the EEZ but which are managed by the State of Alaska is not 
prohibited by the Federal salmon regulations.
    In the proposed rule, NMFS proposed to remove Sec.  679.7(h)(1) and 
delete the reference to the North Pacific Fisheries Act. This would 
have the unintended consequence of foreclosing fishing that the Salmon 
FMP expressly authorizes in the three net fisheries identified in 
section 2.2.2 and Appendix C. Without the reference to the North 
Pacific Fisheries Act, NMFS is left with the language of 50 CFR Sec.  
679.3(f)(3) , which states, in part, ``Because no commercial fishing 
for salmon is allowed in the EEZ west of Cape Suckling, all commercial 
salmon fishing west of Cape Suckling must take place in Alaska's 
territorial sea and, consequently, is subject to Alaska's management 
authority.'' This sentence in Sec.  679.3(f)(3) is not accurate in view 
of Section 2.2.2 of the Salmon FMP, but since it is only descriptive 
and not proscriptive it does not operate to foreclose fishing that 
currently is allowed under the Salmon FMP and Sec.  679.7(h)(1). The 
exemption for the three historical net fisheries may be less clear in 
the absence of Sec.  679.7(h)(1). The commenter makes suggestions for 
changes to the final rule regulatory text to ensure that fishing for 
salmon in the three net fishing areas is not prohibited.
    NMFS agrees with the commenter that the proposed rule would have 
resulted in the unintended prohibitions of fishing for salmon in the 
three historical fisheries. NMFS makes the suggested changes to the 
final rule implementing the Salmon FMP at Sec.  679.3(f) and Sec.  
679.7(h)(2).

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule does not have a significant economic 
impact on a substantial number of small entities. This final rule 
extends the jurisdiction of the Salmon FMP to the EEZ waters west of 
175[deg] E. long. This final rule will have no effect on any small 
entities because there has not been any domestic salmon fishing in 
these waters for 40 years, and NMFS expects no salmon fishing to 
develop in these waters in the forseeable future. No comments were 
received regarding the economic impact of the final rule. As a result, 
a regulatory flexibility analysis was not prepared.
    NMFS is aware of no existing relevant Federal rules which 
duplicate, overlap, or conflict with this final rule.
    This regulation does not impose new recordkeeping or reporting 
requirements on the regulated small entities.
    The legislative authority for this action is the Magnuson-Stevens 
Fishery Conservation and Management Act, Public Law 94 265, 16 U.S.C. 
1801 (Magnuson-Stevens Act).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, International organizations, Recordkeeping and 
reporting.

    Dated: December 31, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 679 is amended as 
follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et. seq., 1801 et. seq., and 3631 et. 
seq.

0
2. In Sec.  679.1, paragraph (i) is revised to read as follows:


Sec.  679.1  Purpose and scope.

* * * * *
    (i) Fishery Management Plan for the Salmon Fisheries in the EEZ off 
the Coast of Alaska (Salmon FMP). (1) Regulations in this part govern 
fishing for salmon by fishing vessels of the United States in the 
Salmon Management Area.
    (2) State of Alaska laws and regulations that are consistent with 
the Salmon FMP and with the regulations in this part apply to vessels 
of the United States that are fishing for salmon in the Salmon 
Management Area.
* * * * *

0
3. In Sec.  679.2 , the definition for ``High Seas Salmon Management 
Area'' is removed; the definitions for ``Commercial fishing,'' 
paragraph (1); ``Optimum yield'' paragraph (1); and ``Personal use 
fishing,'' are revised and the definition for ``Salmon Management 
Area'' is added, alphabetically to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Commercial fishing means:
    (1) For purposes of the salmon fishery, fishing for salmon for sale 
or barter.
* * * * *
    Optimum yield means:
    (1) With respect to the salmon fishery, that amount of any species 
of salmon

[[Page 877]]

that will provide the greatest overall benefit to the Nation, with 
particular reference to food production and recreational opportunities, 
as specified in the Salmon FMP.
* * * * *
    Personal use fishing means, for purposes of the salmon fishery, 
fishing other than commercial fishing.
* * * * *
    Salmon Management Area means the waters of the EEZ off the coast of 
Alaska (see Figure 23 to part 679), including parts of the North 
Pacific Ocean, Bering Sea, Chukchi Sea, and Beaufort Sea. The Salmon 
Management Area is divided into a West Area and an East Area with the 
border between the two at the longitude of Cape Suckling 
(143[deg]53'36'' W):
    (1) The West Area is the area of the EEZ off the coast of Alaska 
west of the longitude of Cape Suckling (143[deg]53'36'' W). It includes 
the EEZ in the Bering Sea, Chukchi Sea, and Beaufort Sea, as well as 
the EEZ in the North Pacific Ocean west of Cape Suckling.
    (2) The East Area is the area of the EEZ off the coast of Alaska 
east of the longitude of Cape Suckling (143[deg]53'36'' W).
* * * * *

0
4. In Sec.  679.3, paragraph (f)(5) is removed; paragraph (f)(4) is 
redesignated as (f)(5); paragraph (f)(3) is revised; and new paragraph 
(f)(4) is added to read as follows:


Sec.  679.3  Relation to other laws.

* * * * *
    (f) Domestic fishing for salmon.
* * * * *
    (3) The Salmon Fishery east of Cape Suckling is administered in 
close coordination with ADF&G's administration of the State of Alaska's 
regulations governing the salmon troll fishery off Southeast Alaska. 
For State of Alaska regulations specifically governing the salmon troll 
fishery, see 5 Alaska Administrative Code 30 (Yakutat Area), and 5 
Alaska Administrative Code 33 (Southeastern Alaska Area).
    (4) Commercial fishing for salmon in the EEZ west of Cape Suckling 
is not allowed except in three net fisheries managed by the State of 
Alaska as described in Section 2.2.2 and Appendix C of the Salmon FMP. 
For State of Alaska regulations governing these fisheries, see 5 Alaska 
Administrative Code 09 (Alaska Peninsula), 5 Alaska Administrative Code 
21 (Cook Inlet), and 5 Alaska Administrative Code 24 (Prince William 
Sound).
* * * * *

0
5. In Sec.  679.7, paragraph (h) is revised to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (h) Salmon fisheries. (1) Fish for, take, or retain any salmon in 
violation of this part.
    (2) Engage in fishing for salmon in the Salmon Management Area 
defined at Sec.  679.2 and Figure 23 to this part, except to the extent 
authorized by Sec.  679.4(h) or applicable State of Alaska regulations.
* * * * *


Sec. Sec.  679.3 and 679.4  [Amended]

0
6. In addition to the amendment set out above, in 50 CFR part 679, 
remove the words ``high seas salmon'' and add in their place the word 
``salmon'' in the following places:
    a. In Sec.  679.3:
    Paragraph (f)(1).
    b. In Sec.  679.4:
    Paragraph (a)(1)(v), paragraphs (h) heading and introductory text, 
(h)(1), (h)(1)(iii), (h)(3), (h)(4), (h)(5)(i), (h)(5)(i)(A), 
(h)(5)(i)(B), (h)(5)(i)(C), (h)(5)(ii), (h)(6) introductory text, 
(h)(6)(iv), (h)(7)(i), (h)(8), (h)(10), (h)(13) heading introductory 
text, (h)(13)(i), (h)(13)(ii)(A), (h)(13)(ii)(E), (h)(14)(i), 
(h)(15)(i), (h)(15)(iii), (h)(15)(vii), and (h)(16)(i).

0
7. In part 679, Figure 23 is added to read as follows:

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[FR Doc. 04-327 Filed 1-6-04; 8:45 am]
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