[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
[Proposed Rules]
[Pages 75101-75104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30598]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120813333-2647-01]
RIN 0648-BC28


Fisheries Off West Coast States; West Coast Salmon Fisheries; 
Amendment 17 to the Salmon Fishery Management Plan

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes regulations to implement Amendment 17 to the 
Pacific Coast Salmon Fishery Management Plan for Commercial and 
Recreational Salmon Fisheries off the Coasts of Washington, Oregon, and 
California (Salmon FMP). Amendment 17, which was transmitted by the 
Pacific Fishery Management Council (Council) on November 5, 2012, to 
the Secretary of Commerce (Secretary) for review and approval, revises 
the maximum fishing mortality threshold (MFMT) for Quillayute fall 
coho, revises the FMP to correct typographical errors, updates 
reporting measures to reflect new technology, and updates or removes 
other obsolete or unnecessary language. The Northwest Regional 
Administrator has determined that the actions of Amendment 17 have all 
either been previously analyzed in a NEPA document or qualify for 
categorical exclusion (CE) from further NEPA analysis under NAO 216-6. 
NMFS also proposes minor updates to regulations unrelated to Amendment 
17.

DATES: Written comments on this proposed rule must be received on or 
before January 8, 2013.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2012-0192, 
by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
enter NOAA-NMFS-2012-0192 in the search box. Locate the document you 
wish to comment on from the resulting list and click on the ``Comment 
Now'' icon on the right of that line.
     Mail: William W. Stelle, Jr., Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070 
or to Rod McInnis, Regional Administrator, Southwest Region, NMFS, 501 
West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213.
     Fax: 206-526-6736 Attn: Peggy Mundy, or 562-980-4047 Attn: 
Heidi Taylor.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that they are received, documented, and considered by 
NMFS. Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered. All comments received are a part of the public record and 
will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter N/A in the required fields if you wish 
to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    Information relevant to this proposed rule, which includes a CE, a 
regulatory impact review (RIR), and an initial regulatory flexibility 
analysis (IRFA) are available for public review during business hours 
at the office of the Pacific Fishery Management Council (Council), at 
7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280, and 
are posted on its Web site (www.pcouncil.org). These documents are also 
linked on the NMFS Northwest Region Web site (www.nwr.noaa.gov). Copies 
of additional reports referred to in this document may also be obtained 
from the Council.

FOR FURTHER INFORMATION CONTACT: Peggy Mundy at 206-526-4323, or Heidi 
Taylor at 562-980-4039.

SUPPLEMENTARY INFORMATION:

Background

    In 2011, NMFS partially approved Amendment 16 to the Salmon FMP. 
Amendment 16 established status determination criteria (SDC), and other 
management metrics, for stocks managed under the Salmon FMP. Regulatory 
changes to implement the approved portions of Amendment 16 were made 
effective in a Final Rule (76 FR 81851, December 29, 2011). In a letter 
to the Council, dated December 11, 2011, NMFS detailed the disapproval 
of one SDC, the proposed maximum fishing mortality threshold (MFMT) for 
Quillayute fall coho, and recommended that the Council submit an FMP 
amendment to address this item. In the course of reviewing Amendment 
16, a variety of other, unconnected, issues were identified as needing 
revision in the FMP, largely to correct typographical errors, update 
notification and reporting measures to reflect new technology, and 
respond to a regulatory procedure issue in the schedule for annual 
management measures. However, these were identified after the Council 
had transmitted Amendment 16 to NMFS for approval. Amendment 17 has 
been developed to address the Quillayute fall coho MFMT and 14 other 
issues.
    The Council transmitted the amendment to NMFS on November 5, 2012. 
NMFS published a Notice of Availability in the Federal Register (77 FR 
67327, November 9, 2012) to notify

[[Page 75102]]

the public of the availability of the amendment and invite comments.
    This proposed rule identifies changes to the regulations under 50 
CFR 660 subpart H to implement Amendment 17. The Council has deemed the 
proposed regulations to be necessary and appropriate as required by 
section 303(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA). This proposed rule also updates regulations under 
the same subpart, unrelated to Amendment 17, to remove obsolete text 
and update terminology.

Components of Amendment 17

    The issues addressed by Amendment 17 are described below, in the 
order in which they affect the FMP.

FMP Chapter 3--Conservation

    Amendment 17 Issue 1. Quillayute fall coho has an 
undefined MFMT, as shown in FMP table 3-1. This occurred because NMFS 
disapproved of the MFMT recommended by the Council under Amendment 16. 
Under Amendment 16, the Council recommended adopting an MFMT of 0.65 
for all Washington Coast coho, to be consistent with the maximum 
exploitation rate allowed under the Pacific Salmon Treaty 2002 Southern 
Coho Management Plan. However, the Council had already accepted the 
Scientific and Statistical Committee approved estimate of 0.59 as the 
best estimate of FMSY for Quillayute fall coho, as presented 
in Appendix E of the Amendment 16 Environmental Assessment. Because 
MFMT cannot exceed FMSY, that element of Amendment 16 was 
not approved and therefore, MFMT is currently undefined for Quillayute 
fall coho in the FMP. Amendment 17 adopts 0.59 for the value of MFMT 
for Quillayute fall coho.
    Amendment 17 Issues 2 and 3. Amendment 17 
corrects typographic errors for six Chinook salmon stocks listed in FMP 
Table 3-1, including erroneous inclusion in the Far North Migrating 
Coastal Chinook stock complex of two Columbia River Chinook stocks 
(Columbia River Upper River Bright Fall and Columbia Upper River 
Summer), and erroneous MFMT values for four stocks (Smith River, 
Southern Oregon, Central and Northern Oregon, and Quillayute Spring/
Summer).

FMP Chapter 5--Harvest

    Amendment 17 Issue 4. A description of Endangered Species 
Act (ESA) listed Chinook salmon is corrected to include federal ESA 
listing of two stocks.
    Amendment 17 Issue 5. The description of methodology to 
estimate abundance for Oregon Production Index (OPI) coho is updated to 
reflect recent changes in scientific methodology.
    Amendment 17 Issue 6. The discussion of management 
considerations for coho salmon north of Cape Falcon is updated to 
reflect recent consideration of impacts to two coho stocks.
    Amendment 17 Issue 7. The description of impacts to pink 
salmon from the ocean fishery is updated to reflect recent analyses of 
exploitation rate for pink salmon, conducted since the Council adopted 
Amendment 16.

FMP Chapter 6--Measures To Manage the Harvest

    Amendment 17 Issue 9. The discussion of minimum size 
limits is updated to better describe recent trends in how these 
management measures are used.
    Amendment 17 Issue 10. The terminology for mark-selective 
fisheries is updated.

FMP Chapter 7--Data Needs, Data Collection Methods, and Reporting 
Requirements

    Amendment 17 Issues 11 and 12. Amendment 17 
updates technology used to collect and report data from the fishery.

FMP Chapter 9--Schedule and Procedures for Preseason Modification of 
Regulations

    Amendment 17 Issue 8. Amendment 17 removes mention of a 
public comment period after final management measures are published in 
the Federal Register. Annual management measures for the salmon fishery 
are published in the Federal Register as a final rule; public comment 
periods are not applied to final rules. The public has an opportunity 
to comment throughout the Council's process of setting annual 
management measures, which includes two Council meetings and public 
hearings held in Washington, Oregon, and California. The Council 
publishes a notice in the Federal Register each December that details 
the process for setting the next year's annual management measures and 
solicits comments. The Council's notice provides the schedule for 
Council meetings and public hearings, as well as the schedule of 
availability of planning documents, including Preseason Report II which 
contains the salmon management alternatives the Council adopts in March 
for further consideration at its April meeting where it adopts a final 
recommendation for the fishing season. The Council's notice informs the 
public of how to request copies of the preseason planning documents, 
how to view the documents online, and how to submit comments to the 
Council by mail, fax, email, or the Federal Rulemaking Portal: 
www.regulations.gov. All comments received are reviewed by both the 
Council and NMFS.

FMP Chapter 10--Inseason Management Actions and Procedures

    Amendment 17 Issues 13 and 14. The language 
regarding notification and procedures for inseason actions is updated 
to reflect current technology and policies.

FMP Chapter 11--Schedule and Procedures for FMP Amendment and Emergency 
Regulations

    Amendment 17 Issue 15. The procedures for FMP amendment 
and emergency regulations are updated to be consistent with the MSA.
Changes to Regulations
    This proposed rule includes changes to the existing regulations at 
50 CFR 660.401 et seq., to implement Amendment 17, and to make 
additional updates. These are described below.
 Definitions (Sec.  660.402)
    The definition of ``Dressed, head-off length'' of salmon is updated 
to remove reference to Figure 3 which no longer appears in the 
regulations. This is a general correction, not a component of Amendment 
17.
 Exempted Fishing (Sec.  660.406)
    The reference to ``Regional Director'' is updated to the current 
term ``Regional Administrator.'' This is a general correction, not a 
component of Amendment 17.
 Annual Actions (Sec.  660.408)
    The references to ``Regional Director'' are updated to the current 
term ``Regional Administrator,'' and the word Chinook is capitalized. 
These are general corrections, not components of Amendment 17.
 Notification and Publication Procedures (Sec.  660.411)
    Language providing for a public comment period after an action is 
effective is removed., and information on availability of data is 
updated.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent

[[Page 75103]]

with Amendment 17, other provisions of the Magnuson-Stevens Act, and 
other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Northwest Regional Administrator has determined that the 
actions of Amendment 17 have all either been previously analyzed in a 
NEPA document or qualify for categorical exclusion from further NEPA 
analysis under NAO 216-6.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed 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 in 
the SUMMARY and Classification sections of this proposed rule. A copy 
of the IRFA is available from NMFS (see ADDRESSES). The IRFA is 
expected to provide a: (1) Description of the reasons why action by the 
agency is being considered; (2) succinct statement of the objectives 
of, and legal basis for, the proposed rule; (3) description of and, 
where feasible, an estimate of the number of small entities to which 
the proposed rule will apply; (4) description of the projected 
reporting, recordkeeping, and other compliance requirements of the 
proposed rule, including an estimate of the classes of small entities 
which will be subject to the requirement and the type of professional 
skills necessary for preparation of the report or record; and (5) an 
identification, to the extent practicable, of all relevant Federal 
rules which may duplicate, overlap or conflict with the proposed rule. 
The IRFA is also to expected to contain a description of any 
significant alternatives to the proposed rule which accomplish the 
stated objectives of applicable statutes and which minimize any 
significant economic impact of the proposed rule on small entities.
    Consistent with the stated objectives of applicable statutes, the 
analysis shall discuss significant alternatives such as: (1) 
Establishing differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) clarifying, consolidating, or simplifying compliance and 
reporting requirements under the rule for such small entities; and (3) 
using performance rather than design standards; and (4) exempting from 
coverage of the rule, or any part thereof, such small entities.
    The reasons for why this action is being considered and the 
statement of objectives and legal basis for the proposed rule are 
discussed above in the SUMMARY and Classification sections of this 
proposed rule. The number of small entities that are affected is 
discussed below along with the other IRFA requirements.
    The commercial entities directly regulated by the Pacific Council's 
Fishery Management Plan are non-tribal commercial trollers, tribal 
commercial trollers, and charterboats. During 2011, the most recent 
year for which NMFS has data, these fleets consisted of estimated 802 
non-tribal trollers, 40 to 50 tribal trollers, and 438-495 
charterboats. Accordingly, NMFS estimates this rule, if implemented, 
will impact approximately 1,300 small entities involved in the fishery.
    Based on Pacific Coast Fisheries Information Network (PacFIN) data, 
a total of 802 non-tribal vessels participated in the West Coast 
commercial salmon fishery in 2011. This figure is 25 percent more than 
participated in 2010 (642), two-and-a-half times the number that 
participated in 2009 (313), and three-and-a-half times the number 
participating in 2008 (221). Total 2011 ex-vessel value of the Council-
managed non-Indian commercial salmon fishery was $9.2 million, an 
increase of 26 percent over the prior year (adjusted for inflation). 
Ex-vessel value was nearly six times above its 2009 level ($1.6 
million) and 85 percent lower than the 1979 through 1990 inflation-
adjusted average of $60.7 million, and 41 percent above the recent 
five-year (2006-2010) inflation-adjusted average of $6.5 million. In 
2011, the coastwide average inflation-adjusted ex-vessel value of 
salmon landings increased slightly compared to 2010, to $10,500 per 
non-tribal vessel (approximately 385 of these trollers account for 90% 
of the revenues for an average revenue of $22,000). Treaty Indian 
commercial fisheries off Washington operate under regulations 
established by the Council. While some of the treaty Indian harvest is 
for ceremonial and subsistence purposes, the vast majority of the catch 
is sold commercially. Commercial treaty Indian fisheries provide food 
to consumers and generate income in local and state economies through 
expenditures on harvesting, processing, and marketing of the catch. 
According to a Northwest Indian Fisheries Commission representative, 
the tribal fleet consists of 40 to 50 trollers. For 2011 the 
preliminary ex-vessel value of Chinook and coho landed in the treaty 
Indian ocean troll fishery was $1.7 million, compared with inflation-
adjusted ex-vessel values of $1.37 million in 2010 and $1.0 million in 
2009 (values based on PacFIN data). During 2011, the tribal troll 
harvest was worth $1.7 million exvessel, implying that the average 
revenue per tribal troller ranges from $34,000 to $42,500.
    A fish-harvesting business is considered a ``small'' entity by the 
Small Business Administration (SBA) if it has annual receipts not in 
excess of $4.0 million. For marinas and charter/party boats, a small 
entity is one with annual receipts not in excess of $6.5 million. All 
of the businesses that would be affected by this action are considered 
small under SBA guidance. Average 2011 tribal and non-tribal vessel 
revenues are approximately $13,000 per vessel. Charterboats 
participating in the recreational salmon fishery in 2000 had average 
revenues ranging from $7,000 to $131,000, depending on vessel size 
class (Pacific States Marine Fisheries Commission study). These figures 
remain low, and NMFS has no information suggesting that these vessels 
have received annual revenues since 2000 such that they should be 
considered ``large'' entities under the RFA. As these average revenues 
are far below SBA's thresholds for small entities, NMFS has determined 
that all of these entities are small entities under SBA's definitions.
    There are no new reporting or recordkeeping requirements. There are 
no relevant Federal rules that may duplicate, overlap, or conflict with 
this action. As the proposed regulations are administrative in nature, 
there are no significant alternatives to the proposed rule that 
accomplish the stated objectives of applicable statutes and that 
minimize any of the significant economic impact of the proposed rule on 
small entities. NMFS estimates that this rule will affect approximately 
1,300 small entities. Under the RFA, an agency does not need to conduct 
an IRFA and/or Final Regulatory Flexibility Analysis (FRFA), if an 
agency can certify that the proposed rule will not have a significant 
economic impact on a substantial number of small entities. The 
regulations being proposed are administrative in nature. Consequently, 
NMFS believes that this rule does not meet any of the tests of having a 
``significant'' economic impact on a ``substantial number'' of small 
entities, nor does NMFS believe that this rule will place a substantial 
number of small entities at a significant competitive disadvantage 
compared to large entities. Nonetheless, NMFS has prepared an IRFA. 
Through the rulemaking process associated with this action, we are

[[Page 75104]]

requesting comments on this conclusion.
    The proposed rule is administrative in nature and does not affect 
ESA listed species. However, NMFS has issued a number of ESA biological 
opinions that address the impacts of the Council managed salmon 
fisheries on listed salmonids as follows: March 8, 1996 (Snake River 
spring/summer and fall Chinook and sockeye), April 28, 1999 (Oregon 
Coast natural coho, Southern Oregon/Northern California coastal coho, 
Central California coastal coho), April 28, 2000 (Central Valley spring 
Chinook), April 27, 2001 (Hood Canal summer chum 4(d) limit), April 30, 
2004 (Upper Willamette Chinook, Upper Columbia spring Chinook, Lake 
Ozette sockeye, Columbia River chum), April 30, 2004 Puget Sound 
Chinook, June 13, 2005 (California coastal Chinook), April 28, 2008 
(Lower Columbia River natural coho), and April 30, 2010 (Sacramento 
River winter Chinook, and listed Puget Sound yelloweye rockfish, canary 
rockfish, and bocaccio), and April 26, 2012 (Lower Columbia River 
Chinook). NMFS reiterates its consultation standards for all ESA-listed 
salmon and steelhead species in their annual Guidance letter to the 
Council. In 2009, NMFS consulted on the effects of fishing under the 
Salmon FMP on the endangered Southern Resident Killer Whale Distinct 
Population Segment (SRKW) and concluded the salmon fisheries were not 
likely to jeopardize SRKW (biological opinion dated May 5, 2009).
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with Tribal officials 
from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 
U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
must be a representative of an Indian Tribe with Federally recognized 
fishing rights from the area of the Council's jurisdiction.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: December 14, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES

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

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

    2. In Sec.  660.402, revise the definition for ``Dressed, head-off 
length of salmon'' to read as follows:


Sec.  660.402  Definitions.

* * * * *
    Dressed, head-off length of salmon means the shortest distance 
between the midpoint of the clavicle arch and the fork of the tail, 
measured along the lateral line while the fish is lying on its side, 
without resort to any force or mutilation of the fish other than 
removal of the head, gills, and entrails.
* * * * *
    3. In Sec.  660.406, revise paragraph (c) to read as follows:


Sec.  660.406  Exempted fishing.

* * * * *
    (c) Each vessel participating in any exempted fishery recommended 
by the Council and allowed by NMFS is subject to all provisions of this 
subpart, except those portions which relate to the purpose and nature 
of the exempted fishery. These exceptions will be specified in a permit 
issued by the Regional Administrator to each vessel participating in 
the exempted fishery and that permit must be carried aboard each 
participating vessel.
* * * * *
    4. In Sec.  660.408, revise paragraphs (d)(1)(vii) and (d)(2)(v) to 
read as follows:


Sec.  660.408  Annual actions.

* * * * *
    (d) * * *
    (1) * * *
    (vii) Other inseason provisions. Any increase or decrease in the 
recreational or commercial allowable ocean harvest resulting from an 
inseason restructuring of a fishery or other inseason management action 
does not require reallocation of the overall non-treaty allowable ocean 
harvest north of Cape Falcon between the recreational and commercial 
fisheries. Inseason redistribution of subarea quotas within the 
recreational fishery or the distribution of allowable coho catch 
transfers from the commercial fishery among subareas may deviate from 
the preseason distribution. Inseason management actions may be taken by 
the Regional Administrator to assure meeting the primary objective of 
achieving all-species fisheries without imposing Chinook restrictions 
in each of the recreational subareas north of Cape Falcon. Such actions 
might include, but are not limited to: Closure from 0 to 3, 0 to 6, 3 
to 200, or 5 to 200 nm from shore; closure from a point extending due 
west from Tatoosh Island for 5 nm, then south to a point due west of 
Umatilla Reef Buoy, then due east to shore; closure from North Head at 
the Columbia River mouth north to Leadbetter Point; change in species 
that may be landed; or other actions as prescribed in the annual 
management measures.
* * * * *
    (2) * * *
    (v) Inseason reallocation. No later than August 15 each year, the 
Salmon Technical Team will estimate the number of coho salmon needed to 
complete the recreational seasons. Any coho salmon allocated to the 
recreational fishery that are not needed to complete the recreational 
seasons will be reallocated to the commercial fishery. Once 
reallocation has taken place, the remaining recreational quota will 
change to a harvest guideline. If the harvest guideline for the 
recreational fishery is projected to be reached on or before Labor Day, 
the Regional Administrator may allow the recreational fishery to 
continue through the Labor Day weekend only if there is no significant 
danger of impacting the allocation of another fishery or of failing to 
meet an escapement goal.
* * * * *
    5. In Sec.  660.411, revise paragraphs (b) and (c) to read as 
follows:


Sec.  660.411  Notification and publication procedures.

* * * * *
    (b) Public comment. If time allows, NMFS will invite public comment 
prior to the effective date of any action published in the Federal 
Register.
    (c) Availability of data. The Regional Administrator will compile 
in aggregate form all data and other information relevant to the action 
being taken and will make them available for public review upon 
request, contact information will be published annually in the Federal 
Register and announced on the telephone hotline. For actions affecting 
fisheries occurring primarily or exclusively in the fishery management 
area seaward of California, information relevant to the action also 
will be made available upon request by the Southwest Region, NMFS.
* * * * *
[FR Doc. 2012-30598 Filed 12-18-12; 8:45 am]
BILLING CODE 3510-22-P