Rule2021-19783
Fisheries Off West Coast States; West Coast Salmon Fisheries; Amendment 21 to the Pacific Coast Salmon Fishery Management Plan
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Published
September 14, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS announces the approval of Amendment 21 to the Pacific Fishery Management Council's (Council) Pacific Coast Salmon Fishery Management Plan (FMP). Amendment 21 establishes an annual Chinook salmon abundance threshold below which the Council and NMFS will implement specific management measures, through the annual ocean salmon management measures, to limit ocean salmon fishery impacts on the availability of Chinook salmon as prey for the Southern Resident killer whale (SRKW) distinct population segment (DPS) of Orcinus orca, which is classified as endangered under the Endangered Species Act (ESA).
Full Text
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<title>Federal Register, Volume 86 Issue 175 (Tuesday, September 14, 2021)</title>
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[Federal Register Volume 86, Number 175 (Tuesday, September 14, 2021)]
[Rules and Regulations]
[Pages 51017-51021]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19783]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[RTID 0648-XA696]
Fisheries Off West Coast States; West Coast Salmon Fisheries;
Amendment 21 to the Pacific Coast Salmon Fishery Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of agency decision.
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[[Page 51018]]
SUMMARY: NMFS announces the approval of Amendment 21 to the Pacific
Fishery Management Council's (Council) Pacific Coast Salmon Fishery
Management Plan (FMP). Amendment 21 establishes an annual Chinook
salmon abundance threshold below which the Council and NMFS will
implement specific management measures, through the annual ocean salmon
management measures, to limit ocean salmon fishery impacts on the
availability of Chinook salmon as prey for the Southern Resident killer
whale (SRKW) distinct population segment (DPS) of Orcinus orca, which
is classified as endangered under the Endangered Species Act (ESA).
DATES: The amendment was approved on August 31, 2021.
ADDRESSES: The amended FMP is available on the Council's website
(<a href="http://www.pcouncil.org">www.pcouncil.org</a>). The final National Environmental Policy Act (NEPA)
environmental assessment (EA) is available on the NMFS website at
<a href="https://www.fisheries.noaa.gov/west-coast/laws-and-policies/west-coast-salmon-harvest-nepa-documents">https://www.fisheries.noaa.gov/west-coast/laws-and-policies/west-coast-salmon-harvest-nepa-documents</a>.
FOR FURTHER INFORMATION CONTACT: Jeromy Jording at 360-763-2268, email
at <a href="/cdn-cgi/l/email-protection#ea808f98858793c48085988e83848daa84858b8bc48d859c"><span class="__cf_email__" data-cfemail="771d1205181a0e591d1805131e1910371918161659101801">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The ocean salmon fisheries in the exclusive
economic zone (EEZ) (3-200 nautical miles, 5.6-370.4 kilometers) off
Washington, Oregon, and California are managed under the FMP. The
Magnuson-Stevens Fishery Conservation and Management Act (MSA) requires
that each regional fishery management council submit any FMP or plan
amendment it prepares to NMFS for review and approval, disapproval, or
partial approval by the Secretary of Commerce (Secretary). The MSA also
requires that NMFS, upon receiving an FMP or amendment, immediately
publish a notice that the FMP or amendment is available for public
review and comment.
The Notice of Availability (NOA) for Amendment 21 was published in
the Federal Register on June 2, 2021 (86 FR 29544), with a 60-day
comment period that ended on August 2, 2021. In the NOA, NMFS also
announced that a draft EA analyzing the environmental impacts of the
actions implemented under Amendment 21 was available for public review
and comment. NMFS received nearly forty thousand comments during the
public comment period on the NOA. The comments included 39,432 comments
that reiterated 6 scripts verbatim, and 448 unique comments from
individuals and organizations. The majority of comments received were
supportive of Amendment 21; however, some comments raised issues with
the amendment. NMFS' authority for this action is limited by the MSA to
approval, disapproval, or partial approval of the amendment submitted
by the Council. NMFS is not disapproving Amendment 21 in response to
the comments received. NMFS summarized and responded to these comments
in the final EA, and under Comments and Responses, below.
NMFS completed a biological opinion under section 7 of the ESA on
the implementation of the FMP, including Amendment 21, and determined
this action was not likely to jeopardize the continued existence of the
SRKW distinct population segment or destroy or adversely modify its
designated or proposed critical habitat (NMFS Consultation Number:
WCRO-2019-04074; biological opinion signed April 21, 2021).
NMFS determined that Amendment 21 is consistent with the MSA and
other applicable laws, and the Secretary of Commerce approved Amendment
21 on August 31, 2021. The June 2, 2021, NOA contains additional
information on this action. Amendment 21 will be implemented through
the annual salmon management measures; no changes to existing Federal
regulations are necessary.
Amendment 21 was developed by the Council to address impacts of the
salmon fisheries managed under the FMP on Chinook salmon as prey for
endangered SRKW. Amendment 21 establishes an annual Chinook salmon
abundance threshold below which the Council and NMFS will implement
specific management measures to limit ocean salmon fishery impacts on
the availability of Chinook salmon as prey for SRKW. The development of
Amendment 21 was informed by the risk assessment prepared by the
Council's ad hoc SRKW Workgroup (Workgroup).\1\ The risk assessment
affirmed Chinook salmon as the primary prey of SRKW based on a review
of the scientific literature. The risk assessment assessed the
potential overlap between SRKW and ocean salmon fisheries and the
effects of these fisheries on SRKW. Chinook salmon, as well as coho
salmon, are targeted in ocean salmon fisheries managed under the FMP.
The Council adopted Amendment 21 at its November 2020 meeting.
Amendment 21 was transmitted to NMFS by the Council on May 25, 2021. A
detailed description of Amendment 21 is included in the NOA (86 FR
29544, June 2, 2021).
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\1\ The SRKW Workgroup's risk assessment report can be found on
the Council's website: <a href="https://www.pcouncil.org/documents/2020/05/e-2-srkw-workgroup-report-1-pacific-fishery-management-council-salmon-fishery-management-plan-impacts-to-southern-resident-killer-whales-risk-assessment-electronic-only.pdf/">https://www.pcouncil.org/documents/2020/05/e-2-srkw-workgroup-report-1-pacific-fishery-management-council-salmon-fishery-management-plan-impacts-to-southern-resident-killer-whales-risk-assessment-electronic-only.pdf/</a>.
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Comments and Responses
NMFS received 39,880 comments during the 60-day public comment
period on the NOA and the draft EA. The comments included 39,432
comments that reiterated 6 scripts verbatim (i.e., form responses), and
448 unique comments from individuals and organizations, during the 60-
day public comment period. The majority of comments, 99.8 percent, were
in support of Amendment 21 (39,432 of the form responses and 366 of the
individual responses). To address the volume of comments, NMFS
identified each unique theme raised in the comments that were not
simply supportive of Amendment 21. NMFS's responses to these themes are
presented below.
Theme 1: General support of Amendment 21. Of the 448 individual
responses NMFS counted, 366 responses were received in support of the
amendment. The 39,432 form responses were also in support of the
amendment.
Response: Thank you for your comment, your support for the
amendment is noted and your participation in the public process is
appreciated.
Theme 2: General opposition of the amendment or requested changes
to the amendment. Eighty two individual comments were received that
were in opposition of the amendment, with rationale for their
opposition in the general themes listed in the comments below.
NMFS' response: Thank you for your comment, your opposition to the
amendment is noted and your participation in the public process is
appreciated. Responses to points made in your comments are addressed
below.
Theme 3: Alter hatchery production. Seventeen commenters requested
Amendment 21 alter hatchery production to address prey availability for
SRKW before altering fishery management.
Response: The Council has no jurisdiction to alter hatchery
production of salmon stocks, and NMFS's decision under Section 304 of
the MSA is whether to approve, disapprove or partially approve
Amendment 21. Therefore, altering hatchery production is outside the
scope of this action. However, hatchery production levels affect the
overall abundance of Chinook
[[Page 51019]]
salmon in the area north of Cape Falcon, OR, and could therefore affect
the frequency at which abundance would fall below the low-abundance
threshold included in Amendment 21 and additional management actions
would be required. Hatchery production was included in the range of
abundances evaluated by the Workgroup's risk assessment that informed
framework of Amendment 21. We considered varying levels of abundances
of salmon for different thresholds that would trigger fishery
management restrictions in our analysis. These different levels could
result from either increased hatchery releases or from natural
production increases, or combinations of the two; therefore, our
analysis takes into account salmon abundance changes regardless of
source. Should hatchery production initiatives increase salmon
abundance in the Council area, because the conservation objectives used
to manage the ocean salmon fishery are mostly based on impacts to wild
fish, additional hatchery fish would likely be disproportionately
available as prey for SRKW.
Theme 4: Address tribal fisheries. Forty-nine individual commenters
requested addressing tribal fisheries equally as non-tribal fisheries
in Amendment 21's requirements.
Response: Under Section 304 of the MSA, NMFS approves, disapproves
or partially approves the FMP amendment recommended by the Council.
Requiring additional measures from tribal fisheries is therefore
outside the scope of this action. The Council, which includes
representatives of the affected states and of the treaty tribes, did
not recommend an alternative that would have required limits on tribal
fisheries beyond those already required to avoid exceeding conservation
objectives for salmon stocks. NMFS concluded in its biological opinion
that the fisheries implemented with the Council's recommended amendment
are not likely to jeopardize SRKW. We have further concluded that
Amendment 21 is consistent with the MSA and other applicable laws,
including the ESA and treaty rights. Further, the fact that the Council
did not recommend imposing limits on tribal fishing does not create an
inconsistency with the MSA or other applicable laws.
Theme 5: Address dams. Eighteen individual commenters requested
addressing dams simultaneously in Amendment 21.
Response: The Council has no jurisdiction over the operation of
dams in the United States, and under Section 304 of the MSA, NMFS'
action, with respect to the Council's recommendation of Amendment 21,
is approval, disapproval, or partial approval. Therefore addressing the
effects of dams on SRKW is outside the scope of this action. We sought,
to the degree possible, to compare alternatives by quantifying their
relative effects across varying degrees of abundance of salmon stocks.
Therefore, to the degree that freshwater dam operations would alter the
level of salmon abundance, we have captured that impact in the
analysis.
Theme 6: Address salmon predation by pinnipeds (i.e., seals and sea
lions). Sixteen individual commenters requested managing seals or sea
lions via Amendment 21 instead of taking action to limit the impacts of
the fisheries on SRKW.
Response: The Council has no authority nor responsibility for
managing pinnipeds in the United States, and under Section 304 of the
MSA, NMFS' action, with respect to the Council's recommendation of
Amendment 21, is approval, disapproval or partial approval. Therefore,
it is beyond the scope of this action to address the impacts of
pinniped predation on salmon populations. Our analysis determined that
pinniped populations that may interact with ocean salmon fisheries are
at stable and historically high levels.
Theme 7: Address salmon interception in Canadian, Alaskan, and
inland fisheries, or interception in other sectors of the West Coast
salmon fisheries. Thirty-three individual commenters requested that
NMFS address the interception of salmon in other fisheries or sectors
via Amendment 21. Additionally, several of the letter comments brought
up a similar theme that the EA was not addressing prior fishery
interceptions.
Response: Under Section 304 of the MSA, NMFS' action with respect
to the Council's recommendation of Amendment 21 is approval,
disapproval or partial approval. Thus, it is not within the scope of
this action to address fisheries managed under other Council FMPs.
Also, as the Council does not have jurisdiction outside the EEZ off the
coasts of the states of Washington, Oregon, and California, it would
not be appropriate for the Council to recommend management measures to
NMFS for salmon fisheries in other areas for implementation under the
MSA. Finally, it is not within the scope of this action for NMFS to
change the Council's recommended approach regarding different sectors
of the ocean salmon fishery. We have accounted for the interception of
salmon stocks in fisheries outside the Council's geographic areas of
jurisdiction in evaluating the proposed action and alternatives. We
recognize in the EA (page 5) that salmon fisheries in the Council area
affect salmon abundances in other areas, including shoreward of the
EEZ. With respect to interactions that occur before salmon reach the
area under the jurisdiction of the Council, we note that salmon
fisheries are managed consistent with the Pacific Salmon Treaty
Agreement. The Council takes projected catch in fisheries in Canada and
Alaska into account when designing its annual fishery recommendations,
and that projected catch is factored into the estimation of Chinook
salmon abundance that would be used to implement Amendment 21. The
conservation objectives that the Council uses to manage fishery impacts
to salmon stocks are in many cases overall exploitation rates that
include catch in most or all of the fisheries that catch those stocks
including those of interest to the commenters. The management for
inside fisheries, including in fresh water and Puget Sound, similarly
takes into account catch in the ocean. In the preseason planning
process for the salmon fisheries, scientists from Federal, state, and
tribal governments collectively analyze available data on salmon stocks
using peer-reviewed models to forecast stock abundance and the impacts
of various fisheries scenarios on those forecast abundances. Post-
season analyses are used to evaluate the effectiveness of salmon
fisheries management in meeting the adopted goals. The models used for
these analyses are routinely evaluated and updated.
We disagree with comments that there is no explanation or guide to
explain to the reader how information was modeled in the EA to address
the effects of these other fisheries. We offer this clarifying response
by pointing out the multiple elements of the EA. We point to Section
4.1.2, Fish & Fisheries, where we explain how we included the suite of
all fisheries restrictions that occur along the West Coast that might
affect the SRKW in order to isolate the effects of implementing the
proposed action from the effects of other fisheries that affect salmon
abundance in the EEZ. We explain in the EA (page 59) that the catch
that occurred in the past, notably in the 1990s, occurred under fishery
management regimes that were not as restrictive as of those today, now
that additional ESA restrictions for salmon stocks are in place. We
describe the newly negotiated Pacific Salmon Treaty Agreement, which
places further
[[Page 51020]]
restrictions on fisheries from those that occurred in the past. Under
Section 304 of the MSA, NMFS' action with respect to the Council's
recommendation is approval, disapproval or partial approval, but we
still account in our analysis for the removal of all fish in areas
regulated in other management forums that would otherwise reach the
EEZ. In fact, the Council's Workgroup report and methodology, which we
explain in the EA at Appendix A (Description of modeling methods and
results), very specifically stated that ``[f]or fisheries from
Southeast Alaska (SEAK) to Cape Falcon, Oregon, we modified the
postseason fishery data in an effort to ensure compliance with some of
the key contemporary conservation requirements that currently drive
fishery planning.'' More simply put, this means we set harvest levels
in Alaska, Canada, and Puget Sound fisheries at levels consistent with
the regulatory framework in place in 2020, and ran coast-wide abundance
estimates from years prior to 2020 through these contemporary
fisheries. This gave us an estimate of the remaining abundance in the
area under the jurisdiction of the Council, to which Amendment 21 would
be applied.
Theme 8: Evaluate a higher threshold or add in additional
alternatives in the EA. Multiple letters commented that evaluating
either higher thresholds, or a no fishing alternative, would have been
more informative.
Response: Thank you for your comments. We have updated the EA
incorporating a ``no fishing scenario'' alternative incorporating the
analysis the Workgroup had already performed in order to examine the
impacts to the environment of a no fishing scenario.
Therefore, by incorporating an alternative that completely closes
Council-area salmon fisheries, including a threshold higher than those
in the range of alternatives analyzed in the EA is unnecessary.
Alternative 4 captures the maximum amount of prey that could be
available to SRKW in the absence of fisheries. Comments requesting
evaluating higher thresholds were focused on assuming that a particular
threshold level of Chinook salmon abundance would promote sustained
growth of SRKW. The results of evaluating Alternative 4, based on the
available data, indicate a complete closure of ocean salmon fisheries
within the EEZ would not significantly benefit SRKW.
The preferred alternative was developed through the Council
process, and the action before NMFS is to approve, disapprove, or
partially approve Amendment 21. NMFS does not have the authority to
substitute one threshold for another, and has now evaluated multiple
levels of abundance that would act as threshold for SRKW as prey to
determine if there is a specific level that provides a significant
benefit to the whales. Our analysis, consistent with that of the
Workgroup, could find no significant quantifiable benefit, even when
Council-area salmon fisheries were completely closed. The preferred
alternative, analyzed under the ESA, and concluded the action was not
likely to jeopardize the continued existence of SRKW or adversely
modify their critical habitat, provides more benefit to SRKW than
continuation of the No Action alternative, and therefore, NMFS approved
the Amendment.
Theme 9: Require additional management measures as part of the
responses required [e.g., multiple letters commented vessel-monitoring
systems (VMS) should have been required].
Response: Under Section 304 of the MSA, NMFS' action, with respect
to the Council's recommendation, is approval, disapproval or partial
approval of Amendment 21. Additional management measures are therefore
outside the scope of this action. The commenters have not identified
any inconsistency of Amendment 21 to the MSA and other applicable law
resulting from the lack of a VMS requirement or other specific measures
suggested.
Theme 10: Amendment 21 will not recover SRKW.
Response: Under Section 304 of the MSA, NMFS' action is to approve,
disapprove, or partially approve Amendment 21. Recovery of SRKW, such
that listing under the ESA is no longer required, will take actions, in
addition to those proposed under Amendment 21, that are outside the
scope of this action. NMFS' final recovery plan for SRKW (which we
provide a link for in the EA at page 74) reviews and assesses the
potential factors affecting their survival and recovery, and lays out a
recovery program to address each of the threats (reduced prey
availability and quality, high levels of contaminants from pollution,
and disturbances from vessels and sound). The recovery plan also
emphasizes that these threats act synergistically, and that addressing
one factor on its own will not recover the species. ESA recovery plans
provide important context for NMFS' determinations pursuant to section
7(a)(2) of the ESA including assessment of the management framework
under Amendment 21. NMFS issued a biological opinion analyzing the
effects of salmon fisheries managed under the FMP, including Amendment
21, and concluded such action was not likely to jeopardize the
continued existence of SRKW or adversely modify their critical habitat.
The goal of Amendment 21 is to help ensure that Council's harvest
management is responsive to the status of SRKWs and supports recovery.
The Council's ocean salmon fisheries are required to be consistent with
the conservation and management objectives of the FMP, the MSA, and the
ESA.
NMFS is committed to working with the Council, states, tribes and
our other partners to take actions to improve conditions for the
whales, and we recognize the fisheries are only one activity that has
contributed to the current SRKW condition, and only one source of
potential risk. Federal funding associated with the 2019 Pacific Salmon
Treaty Agreement is currently being used to produce additional hatchery
fish to increase prey availability for SRKW, and to improve the status
of Puget Sound Chinook salmon populations through habitat restoration
and conservation hatchery production, which is expected to further
increase prey availability. As noted above, the 2019 Pacific Salmon
Treaty Agreement itself includes reductions to fisheries. In addition
we are working closely with state and local partners to improve water
quality in SRKW habitat, and reduce vessel disturbance and interference
with foraging so that the existing Chinook salmon are more accessible
to the whales. Working with a variety of partners, we are implementing
actions identified in our review of the existing vessel regulations to
improve compliance with regulations and guidelines to improve habitat
conditions for the whales. NMFS recently designated critical habitat
for SRKW along coastal waters of Washington, Oregon, and California (86
FR 41668, August 2, 2021), and additionally we are implementing actions
recommended through the Governor of Washington's SRKW Task Force
process. For more information about SRKW conservation and recovery
actions underway, please refer to NMFS' West Coast Region website:
<a href="https://www.fisheries.noaa.gov/west-coast/endangered-species-conservation/southern-resident-killer-whale-orcinus-orca">https://www.fisheries.noaa.gov/west-coast/endangered-species-conservation/southern-resident-killer-whale-orcinus-orca</a>.
Theme 11: NMFS failed to directly respond to public comments during
this process. Several letters commented that written comments submitted
by organizations throughout the process did not receive written
responses.
Response: NMFS is responding to public comments on proposed
Amendment 21 and the draft EA,
[[Page 51021]]
consistent with legal requirements. Until this point, the process that
has occurred has been through the Council and is governed by the MSA.
Both the Workgroup and Council meetings were open to the public and
public participation was encouraged. Each Workgroup meeting and Council
meeting were noticed in the Federal Register at least 23 calendar days
prior so the public was informed and able to attend. The Council heard
input from members of the public at all stages of the Council's
development and consideration of Amendment 21, and the Council
considered the publics' input in making its decision to recommend
Amendment 21 to NMFS.
Theme 12: NMFS failed to prepare an Environmental Impact Statement
(EIS) instead of an EA. Several letters commented that NMFS should
instead have performed an EIS.
Response: NMFS determined that preparing an EA here was the
appropriate level of analysis. NMFS did not receive any comments that
indicate the methodology utilized for assessing the effects of the
fisheries from the alternatives considered in the EA is inadequate, was
not based on the best available scientific information, or otherwise
flawed. The comments also did not reveal new information that had not
been considered by the Workgroup, the Council, or NMFS in their
analysis or decision making or identify any significant effects of the
proposed action. NMFS used this methodology to evaluate the effects of
the alternatives, including proposed Amendment 21, on the environment
including SRKW, and concluded there are no significant impacts to the
environment from the preferred alternative.
Theme 13: NMFS should alter critical habitat or designate Marine
Protected Areas through the proposed action (e.g., designate critical
habitat in Hood Canal and should ``enforce '' critical habitat).
Response: Under Section 304 of the MSA, NMFS' decision is to
approve, disapprove, or partially approve Amendment 21. Therefore,
alterations to critical habitat or Marine Protected Areas are outside
the scope of the action.
Theme 14: Address or construct management measures that include
climate change considerations (e.g., multiple letters commented on
recommending risk-averse Chinook salmon management procedures in the
context of rising environmental stresses on Chinook salmon populations
due to effects from climate change).
Response: Basing the proposed action's triggered response on an
aggregate abundance threshold of Chinook salmon is inherently
responsive to climate change, as this approach anticipatorily
incorporates any effect that climate change may have on Chinook salmon
abundances.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 8, 2021.
Jennifer M. Wallace,
Acting Director of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 2021-19783 Filed 9-13-21; 8:45 am]
BILLING CODE 3510-22-P
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