[Federal Register: January 7, 2004 (Volume 69, Number 4)]
[Rules and Regulations]
[Page 875-878]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja04-10]
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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 patsy.bearden@noaa.gov.
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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