[Federal Register Volume 73, Number 37 (Monday, February 25, 2008)]
[Rules and Regulations]
[Pages 9960-9964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3348]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.061219338-7494-03]
RIN 0648-AU69


Fisheries off West Coast States and in the Western Pacific; 
Amendment 15 to the Pacific Coast Salmon Fishery Management Plan

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

ACTION: Final rule.

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SUMMARY: This final rule implements Amendment 15 to the Pacific Coast 
Salmon Fisheries Management Plan (Plan) in accordance with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This action is intended to provide management flexibility 
in times of low Klamath River

[[Page 9961]]

fall-run Chinook (KRFC) abundance, while preserving the long-term 
productive capacity of the stock and thereby ensuring it continues to 
contribute meaningfully to ocean and river fisheries in the future.

DATES: This rule will be effective on March 26, 2008.

ADDRESSES: Amendment 15 is available on the Pacific Fishery Management 
Council's (Council's) website at http://www.pcouncil.org/salmon/salfmp.html.

FOR FURTHER INFORMATION CONTACT: Sarah McAvinchey by phone at 206- 526-
6140, fax 206-526-6736 and email at [email protected], or Eric 
Chavez by phone at 508-980-4064, email at [email protected], fax 
508-908-4047 or contact Pacific Fishery Management Council by phone at 
503-820-2290 or by fax at 503-820-2299.

SUPPLEMENTARY INFORMATION: The Council prepared Amendment 15 to the FMP 
under the provisions of the Magnuson-Stevens Act and submitted it for 
review by the Secretary of Commerce (Secretary). A notice of 
availability was published on December 20, 2006 (71 FR 76270). The 
decision to approve the Amendment was made on March 22, 2007, 
consistent with the Magnuson-Stevens Act. Details of Amendment 15 were 
given in the proposed rule and are not repeated here. A proposed rule 
for Amendment 15 was published in the Federal Register on May 15, 2007 
(72 FR 27276). The comment period on the proposed rule closed on June 
28, 2007.

Comments and Responses

    During the comment period for proposed rule on Amendment 15 NMFS 
received 2 comments. One letter was sent by a member of the public, the 
other was sent by the Yurok Tribe.
    Comments received on the proposed rule are addressed here:
    Comment 1: The private citizen's letter stated that in order to 
save salmon runs the Snake River Dams need to be breached.
    Response: This is outside the scope of this action.
    Comment 2: The Yurok Tribe letter stated their concern regarding 
the lack of a set reduction schedule of acceptable age-four ocean 
impact rates on KRFC under the de minimis provisions of the Amendment. 
They encouraged the Secretary not to approve the rule. They stated that 
their concern was for the long term productivity and health of the KRFC 
stock and believe that this amendment does not fulfill the Federal 
Government's tribal trust obligations. They go on to state that this 
rule will not aid in dealing with the overfished status of the stock. 
They also referred NMFS to their previously submitted comments on the 
Amendment during that comment period.
    Response: NMFS shares the Yurok Tribe's concerns regarding the long 
term health of the KRFC stock and understands and takes seriously the 
trust responsibilities. NMFS believes the Amendment and this final rule 
are consistent with those responsibilities. NMFS does not interpret 
Amendment 15 to set a fixed schedule of allowable salmon harvest 
whenever the forecasted abundance of natural spawners falls within the 
range of 35,000 to 12,000. Rather, Amendment 15 allows the Council to 
recommend, without emergency rulemaking, the possibility of some de 
minimis harvest of KRFC in order to allow mixed stock ocean fisheries 
to occur when the preseason forecast of naturally-spawning KRFC falls 
below 35,000.
    In recognition of the concerns presented by the Yurok Tribe, NMFS 
has added more specific language to the regulatory text, to include the 
specifics of Amendment 15 and the list of considerations that the 
Council is required to evaluate in setting the age-four ocean impact 
rate. NMFS has also added a footnote to describe how NMFS interprets 
implementation of the de minimis fishing provisions, and to state that 
nothing in the Amendment or this final rule automatically predetermines 
that a particular level of harvest of KRFC will be acceptable or 
allowed. As noted in the proposed rule the extent of the harvest 
actually allowed in a particular year will be limited by the general 
requirements of the Magnuson-Stevens Act to maintain the capacity to 
produce maximum sustainable yield on a continuing basis, by the 
specific factors listed in Amendment 15, and by the requirement to meet 
trust responsibilities to affected Indian tribes.

Changes from the Proposed Rule

    In the proposed rule NMFS added paragraph (d) to Sec.  660.410, 
which lists considerations the Council must make when setting the de 
minimis fishing provisions. This paragraph also includes a footnote 
stating how NMFS interprets the implementation of the de minimis 
fishing provisions of the Amendment. This final rule revised paragraph 
(d) to state the required considerations from Amendment 15 and the 
requirements that NMFS must ensure that age-4 ocean impact rate will 
not jeopardize the long term capacity of the stock to produce maximum 
sustainable yield on a continuing basis.

Classification

    The Administrator, Northwest Region, NMFS, determined that this 
final rule is necessary for the conservation and management of the 
Klamath River Fall-run Chinook fishery and that it is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    The Council prepared an environmental assessment for this FMP 
amendment that discusses the impact on the environment as a result of 
this rule. A copy of the environmental assessment is available from the 
Council (see ADDRESSES).
    This final rule has been determined to be significant for purposes 
of Executive Order 12866.
    The final regulatory flexibility analysis (FRFA) consists of the 
IRFA. No comments were received on the IRFA or on the economic impacts 
of this rule. A copy of this analysis is available from the Council 
(see ADDRESSES). The FRFA describes the economic impact this final 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY section of the preamble. A summary of the analysis follows.
    Commercial salmon harvesting vessels buyers/processors, and 
charter/party boats are expected to be the only type of small entities 
directly impacted by the proposed action. Section 603 (b)(1)-(5) of the 
RFA identifies the elements that should be included in the IRFA. These 
elements are bulleted below, followed by information that addresses 
each element.
    Description of the reasons why action by the agency is 
being considered:
    This action is needed to prevent fishery restrictions that impose 
severe economic consequences to local communities and states. 
Historically, KRFC was a primary contributor to marine fisheries off 
the coasts of Oregon and California. While the FMP amendment seeks to 
provide management flexibility in times of scarcity, there is an 
overriding purpose to preserve the long-term productive capacity of the 
stock to ensure meaningful contributions to ocean and river fisheries 
in the future.
    Statement of the objectives of, and legal basis for, the 
final rule:
    The Salmon FMP directs ocean salmon fishery management actions 
relative to the exclusive economic zone(EEZ) off the coasts of 
Washington, Oregon, and California. Under the existing Salmon FMP, a 
preseason

[[Page 9962]]

projection that the conservation floor for KRFC will not be met 
triggers a Conservation Alert, which provides the Council and NMFS only 
one option: to close all salmon fisheries within its jurisdiction that 
impact the stock. These fisheries include ocean salmon fisheries 
between Cape Falcon, Oregon and Point Sur, California. Currently, any 
other option can only be addressed through the emergency regulation 
process as provided in the Magnuson-Steven Act (MSA) and implemented by 
NMFS.
    The purpose of Amendment 15 is two-fold: (1) to give more 
flexibility to the management process when the escapement floor of 
35,000 natural spawners for KRFC is projected not to be met; and (2) to 
provide for appropriate opportunities to access more robust Chinook 
salmon stocks that are typically available in the Council managed area. 
This rule would, in appropriate circumstances, allow for the Council to 
develop and recommend fisheries, and NMFS to implement fisheries 
without the need for an emergency rule in years when the abundance of 
KRFC are low.
    Description of and an estimate of the number of small 
entities to which the final rule would apply:
    The small entities that would be affected by the proposed action 
are the vessels that compose the California and Oregon commercial 
salmon troll fleet and buyers/processors, the charter/party boat fleet 
between Cape Falcon, Oregon, and Point Sur, California, and other 
fishery dependent businesses. In years with sufficient surplus, the 
Yurok and Hoopa Valley Tribes sell salmon in excess of their 
subsistence needs. The generally acknowledged minimum tribal 
subsistence need is about 12,000 KRFC. In years that a Conservation 
Alert is triggered, it is unlikely the tribal share would exceed 12,000 
KRFC. Therefore, no analysis of the tribal fishery is included in the 
IRFA.

Salmon Troll Fleet

    The financial impacts analysis focuses on the ex-vessel revenue 
effects of each alternative on salmon troll vessels. Financial impacts 
were evaluated based only on changes in salmon ex-vessel revenues 
relative to the Status Quo Alternative. Vessel counts are based on 
unique vessel identifiers. However, it is known that in many cases a 
single firm may own more than one vessel; therefore, the counts should 
be considered upper bound estimates. Additionally, businesses owning 
vessels may have revenue from fisheries in other geographic areas, such 
as Alaska, or from non-salmon fishing activities. Therefore, it is 
likely that when all operations of a firm are aggregated, some of the 
small entities identified here are actually larger than indicated. 
Approximately 2,718 vessels were permitted to operate in the commercial 
salmon troll fisheries in Oregon and/or California in 2005, although 
the active fleet was considerably smaller, with an average of 
approximately 1,068 vessels participating in 2003-2005. In addition, 
only about 13-19 percent of the active fleet landed 50 percent of the 
catch, and 52-55 percent of the fleet landed 90 percent of the catch in 
those years (STT 2006a). Of the 1,068 vessels, 40 percent participated 
only in salmon fisheries, while the other 60 percent participated in 
multiple fisheries. All of these vessels would be considered small 
businesses under the SBA standards. The active fleet participation is 
dynamic with respect to annual opportunity in the salmon fishery. In 
years with less opportunity, some salmon vessels choose not to 
participate, and either engage in other fisheries or sell out. In years 
with more opportunity, previously inactive vessels may choose to 
participate, or may be sold to more active fishermen. Under the Status 
Quo Alternative, there would be no participation in the commercial 
salmon fishery between Cape Falcon, Oregon and Point Sur, California 
during years that a Conservation Alert was triggered. Under the fixed 
cap alternatives, the active fleet was projected to be approximately 
268 to 354. The 2003-2005 average salmon related revenue per troll 
vessel was estimated at $20,900. For salmon only troll vessels the 
average was $14,300 and for multiple species troll vessels the average 
was $25,200. Under the fixed cap alternatives, the average salmon-
related revenue was projected at $1.6 million to 3.1 million in a 
Conservation Alert Year and applying a medium troller success rate 
scenario.

Processors/Buyers

    A relatively small number of large processor/buyer firms handle 
most of the ocean salmon catch on the West Coast. There were 464 firms 
with state processor/buyer licenses that sold salmon in Oregon and 
California in 2004 (PFMC and NMFS 2006). These firms include both 
operators of processing plants and buyers that may do little more than 
hold the fish prior to their shipment to a processor or market. In some 
cases, the buyers may be owners of vessels who also own licenses 
allowing them to sell fish directly to the public or retail markets. 
Most larger salmon buying firms acquire fish from sites in more than 
one port. The largest salmon buyers tend to buy salmon from many 
vessels and buy fish in several ports. The top ocean caught salmon 
buying firms include some firms that are not among the top fish buyers 
when all species are counted. Larger processing firms are more likely 
to handle ocean caught salmon than smaller firms. However, there are 
many small buyers that specialize in salmon, only handle small amounts 
of product, and receive product from one or two vessels. It is likely 
that most of these buyers are vessels that also have licenses allowing 
them to sell directly to the public or other retail outlets(e.g., 
restaurants). A thorough analysis of the effects of the Preferred 
Alternative would include estimates of the numbers of vessels acting as 
buyers/processors, as well as other buyer/processor sectors, the recent 
history of revenue generated by the various classes of buyer/
processors, and a projection of revenue generated under the Status Quo 
and Preferred alternatives in Conservation Alert years. However, 
because many of the small business buyer/processors include vessel 
ownership, and because most buyer/processors deal in multiple 
fisheries, it is likely the effects of the Preferred Alternative are 
proportional to those estimated and projected for the salmon troll 
fleet above.

Charter/Party Boats

    Approximately 103 charter boats participated in California 
recreational ocean salmon fisheries in 2003-2005 (STT 2006a). In 
Oregon, there was an average of 211 licensed charter vessels during 
these same years. An estimated 6 percent of the Oregon charter effort 
occurred in the Astoria area during 2003-2005 (STT 2006a). In Oregon 
there was an average of 211 licensed charter vessels. There was no 
information available for port of operation for Oregon charter vessels, 
but an average of 18 percent of Oregon charter based salmon trips 
originated in the Astoria area. There was also no information available 
on fishery participation for Oregon vessels, and some may not have 
engaged in salmon fishing. Conversely, it is likely that most of the 
Charter fleet in both states participated in fisheries other than 
salmon, such as California halibut, Pacific Halibut, bottomfish, and 
albacore. Separate economic impact estimates were not available for 
charter and private boat salmon fishing sectors; however during 2003-
2005, Oregon and California recreational salmon fishing effort averaged 
297,200 angler trips for both boat types, with charter boat fishing 
averaging 31 percent of the total during. Based on this assumption the 
projected state level income impact of the de minimis fishery 
alternatives

[[Page 9963]]

under the fixed cap alternatives in a Conservation Alert Year ranged 
from $6.2 million to $6.8 million dollars. For the Status Quo 
Alternative the economic impact was about $322,000. Based on an assumed 
fleet of 314 vessels, the average economic impact per vessel was about 
$3,200 for the Status Quo Alternative and $19,700 to $21,700 annually 
for the fixed cap alternatives.

Other Small Businesses

    In addition to commercial fishing vessels, other fishery-dependent 
businesses that may be affected include suppliers, buyers who act as 
intermediaries between vessels and consumers, processors who purchase 
raw materials from commercial vessels to produce seafood products, and 
charter or party vessels that provide recreational fishing experience 
for paying customers, among others. A thorough accounting of net 
benefits would include measurement of producer surpluses accruing to 
these business sectors as well as to fishing vessels.
    A description of the projected reporting, record-keeping, 
and other compliance requirements of the final rule, including an 
estimate of the classes of small entities that will be subject to the 
requirements of the report or record:
    There were no new reporting or record-keeping requirements that are 
proposed as part of this final rule.
    An identification, to the extent practicable, of all 
relevant Federal rules, which may duplicate, overlap, or conflict with 
the final rule:
    No Federal rules have been identified that duplicate, overlap, or 
conflict with the alternatives.
    A description of any significant alternatives to the final 
rule that accomplish the stated objectives that would minimize any 
significant economic impact of the final rule on small entities:
    The decision to set the de minimis harvest rate cap at 10 percent 
was determined through the consideration of ecological, fishery, and 
economic effects of each alternative. It should be noted that 
modification of the current 35,000 naturally spawning adult floor to 
some other value would not address the issue of de minimis fishing 
opportunity in low abundance years, which is a primary reason for 
approval of Amendment 15 to the FMP. The Council was presented with 
modeling results from the Salmon Amendment Committee (SAC) at its 
September 2006 meeting which examined each of the alternatives. These 
results showed little difference in long term effects on the stock size 
between each of the proposed alternatives. Differences among the de 
minimis alternatives (status quo, 5 percent, 10 percent, 13 percent) in 
terms of aggregate salmon troll revenues and associated income impacts 
indicated little difference among the alternatives in terms of long-
term economic effects. The alternatives, however, indicated more 
substantial differences when the analysis focused on fishery outcomes 
in Conservation Alert years. The 13 percent alternative showed a higher 
probability of the age-4 ocean harvest rate going above 16 percent, 
which is the Endangered Species Act (ESA) Consultation Standard for 
threatened California Coastal Chinook. The 13 percent alternative also 
showed a higher probability of reducing the tributary spawning 
escapement below 720, which is considered to be a crucial genetic 
threshold. The 5 percent and the status quo alternatives were also 
examined and while they would both be a lower catch limit than the 10 
percent and 13 percent alternatives they would provide little in the 
way of economic benefit to the fishery. The 10 percent alternative was 
chosen because it will not impact the long term productivity of the 
stock, especially when provisions are set to reduce the cap as needed 
and it provides some economic relief to the fishery. The model 
projections showed that the 10 percent alternative would allow for more 
fishing days, a higher catch of KRFC and a higher revenue than the 5 
percent alternative.
    This rule provides authority under certain circumstances for de 
minimis fisheries. The specific impacts of annual measures will be 
assessed annually during the development of annual measures. 
Additionally, the specific impacts of any de minimis fisheries pursuant 
to the authority of Amendment 15 will be assessed at that time.
    Since 1989, NMFS has listed 27 ESUs of salmonids on the West Coast. 
As the listings have occurred, NMFS has conducted formal ESA section 7 
consultations and issued biological opinions, and made determinations 
under section 4(d) of the ESA, that consider the impacts to listed 
salmonid species resulting from proposed implementation of the Salmon 
FMP, or in some cases, from proposed implementation of the annual 
management measures. Associated with the biological opinions are 
incidental take statements that specify the level of take that is 
expected. Some of the biological opinions have concluded that 
implementation of the Salmon FMP is not likely to jeopardize the 
continued existence of certain listed salmonid ESUs and provide 
incidental take statements. Other biological opinions have found that 
implementation of the Salmon FMP is likely to jeopardize certain listed 
ESUs and have identified reasonable and prudent alternatives 
(consultation standards) that would avoid the likelihood of 
jeopardizing the continued existence of the ESU under consideration, 
and provided an incidental take statement for the reasonable and 
prudent alternative.
    NMFS has determined that fishing activities conducted pursuant to 
this final rule will affect endangered and threatened species and 
critical habitat under the ESA but will not jeopardize the continued 
existence of those species. NMFS will continue to assess the impact of 
the fishery each year during the development of annual measures.
    The West Coast ocean salmon fisheries are considered a Category III 
fishery under the Marine Mammal Protection Act, indicating a remote 
likelihood of or no known serious injuries or mortalities to marine 
mammals, in the annual list of fisheries published in the Federal 
Register. Based on its Category III status, the incidental take of 
marine mammals in the West Coast salmon fisheries does not 
significantly impact marine mammal stocks.
    Amendment 15 was developed by the Council, which includes a tribal 
representative who proposed no objections to the Amendment before 
NMFS's approval. Klamath River tribes with federally recognized fishing 
rights may be impacted by Council area fisheries. NMFS notified the 
Yurok and Hoopa Tribes regarding the changes in this final rule from 
the proposed rule. In addition, as discussed above the Yurok Tribe 
submitted comments on the proposed rule. In consideration of those 
comments NMFS modified the regulatory text in this final rule.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 7, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reason set out in the preamble, NMFS amend 50 CFR part 660 as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority for part 660 continues to read as follows:

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

[[Page 9964]]


0
2.In Sec.  660.410 revise paragraph (b)(1) and add paragrpah (d) to 
read as follows:


Sec.  660.410  Conservation objectives.

    (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 and the de minimis fishing 
provisions for Klamath River fall Chinook may be changed only by 
amendment.
* * * * *
    (d) Within the Cape Falcon to Point Sur area, the Council may allow 
de minimis fisheries which: permit an ocean impact rate of no more than 
10 percent on age-4 Klamath River fall Chinook, if the projected 
natural spawning escapement associated with a 10 percent age-4 ocean 
impact rate, including river recreational and tribal impacts, is 
between the conservation objective (35,000) and 22,000. If the 
projected natural escapement associated with a 10 percent age-4 ocean 
impact rate is less than 22,000, the Council shall further reduce the 
allowable age-4 ocean impact rate to reflect the status of the 
stock.\1\
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    \1\ NMFS interprets that, consistent with the de minimis 
provisions of the FMP, the maximum allowable 10 percent age-4 ocean 
impact rate may be implemented only when the anticipated escapement 
is near the 35,000 natural spawner floor. As escapement falls below 
approximately 30,000, the impact rate will need to decline 
automatically.
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    (1)When recommending an allowable age-4 ocean impact rate, the 
Council shall consider the following year specific circumstances:
    (i)The potential for critically low natural spawner abundance, 
including the risk of Klamath Basin substocks dropping below crucial 
genetic thresholds;
    (ii) A series of low spawner abundance in recent years;
    (iii) The status of co-mingled stocks;
    (iv) The occurrence of El Nino or other adverse environmental 
conditions;
    (v) Endangered Species Act (ESA) considerations; and
    (vi) Other considerations as appropriate.
    (2) The Klamath River fall Chinook age-4 ocean impact rate must not 
jeopardize the long term capacity of the stock to produce maximum 
sustainable yield on continuing basis.
[FR Doc. E8-3348 Filed 2-22-08; 8:45 am]
BILLING CODE 3510-22-S