[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
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]
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
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:
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
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.
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
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
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/
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
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
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
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
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
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
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
with Amendment 17, other provisions of the Magnuson-Stevens Act, and
other applicable law, subject to further consideration after public
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
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
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
* * * * *
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
* * * * *
(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
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
(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]
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