Rule2024-08664
Fisheries of the Exclusive Economic Zone off Alaska; Cook Inlet Salmon; Amendment 16
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 30, 2024
Effective
May 30, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS issues this final rule to implement amendment 16 to the Fishery Management Plan (FMP) for the Salmon Fisheries in the Exclusive Economic Zone (EEZ) Off Alaska (Salmon FMP). Amendment 16 and this final rule establish Federal fishery management for all salmon fishing that occurs in the Cook Inlet EEZ, which includes commercial drift gillnet and recreational salmon fishery sectors. This action is necessary to comply with rulings from the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the District of Alaska, and to ensure the Salmon FMP is consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This final rule is intended to promote the goals and objectives of the Magnuson-Stevens Act, the Salmon FMP, and other applicable laws.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 84 (Tuesday, April 30, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34718-34767]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08664]
[[Page 34717]]
Vol. 89
Tuesday,
No. 84
April 30, 2024
Part VI
Department of Commerce
-----------------------------------------------------------------------
National Oceanic and Atmospheric Administration
-----------------------------------------------------------------------
15 CFR Part 902
50 CFR Part 600 and 679
Fisheries of the Exclusive Economic Zone off Alaska; Cook Inlet Salmon;
Amendment 16; Final Rule
Federal Register / Vol. 89 , No. 84 / Tuesday, April 30, 2024 / Rules
and Regulations
[[Page 34718]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR 902
50 CFR Parts 600 and 679
[Docket No.: 240417-0111]
RIN 0648-BM42
Fisheries of the Exclusive Economic Zone off Alaska; Cook Inlet
Salmon; Amendment 16
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement amendment 16 to the
Fishery Management Plan (FMP) for the Salmon Fisheries in the Exclusive
Economic Zone (EEZ) Off Alaska (Salmon FMP). Amendment 16 and this
final rule establish Federal fishery management for all salmon fishing
that occurs in the Cook Inlet EEZ, which includes commercial drift
gillnet and recreational salmon fishery sectors. This action is
necessary to comply with rulings from the U.S. Court of Appeals for the
Ninth Circuit and the U.S. District Court for the District of Alaska,
and to ensure the Salmon FMP is consistent with the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act). This
final rule is intended to promote the goals and objectives of the
Magnuson-Stevens Act, the Salmon FMP, and other applicable laws.
DATES: This rule is effective on May 30, 2024.
ADDRESSES: Electronic copies of amendment 16; the Environmental
Assessment, the Regulatory Impact Review, and the Social Impact
Analysis (contained in a single document and collectively referred to
as the ``Analysis''); the Finding of No Significant Impact; and the
public comment announcement and tribal consultation and meeting
summaries prepared for this action may be obtained from <a href="http://www.regulations.gov">http://www.regulations.gov</a> or from the NMFS Alaska Region website at <a href="https://www.fisheries.noaa.gov/action/amendment-16-fmp-salmon-fisheries-alaska">https://www.fisheries.noaa.gov/action/amendment-16-fmp-salmon-fisheries-alaska</a>.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS Alaska Region, P.O. Box 21668,
Juneau, AK 99802-1668, Attn: Gretchen Harrington; in person at NMFS
Alaska Region, 709 West 9th Street, Room 401, Juneau, AK; and to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments''; or by using the search function.
FOR FURTHER INFORMATION CONTACT: Doug Duncan, 907-586-7228 or
<a href="/cdn-cgi/l/email-protection#71151e04165f15041f12101f311f1e10105f161e07"><span class="__cf_email__" data-cfemail="9bfff4eefcb5ffeef5f8faf5dbf5f4fafab5fcf4ed">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This final rule implements amendment 16 to
the Salmon FMP. NMFS published the proposed rule and Notice of
Availability (NOA) for amendment 16 in the Federal Register on October
19, 2023 (88 FR 72314), with public comments invited through December
18, 2023. Comments submitted on the NOA and the proposed rule for
amendment 16 were considered jointly. The Secretary of Commerce
approved amendment 16 on April 9, 2024, after considering public
comment and determining that amendment 16 is consistent with the Salmon
FMP, the Magnuson-Stevens Act, and other applicable laws.
NMFS manages U.S. salmon fisheries in the EEZ off of Alaska under
the Salmon FMP. The North Pacific Fishery Management Council (Council)
prepared, and the Secretary of Commerce (Secretary) approved, the
Salmon FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C.
1801 et seq. Regulations implementing the Salmon FMP are located at 50
CFR part 679. General regulations governing U.S. fisheries also appear
at 50 CFR part 600. NMFS is authorized to prepare an FMP amendment
necessary for the conservation and management of a fishery managed
under the FMP if the Council fails to develop and submit such an
amendment after a reasonable period of time (section 304(c)(1)(A); 16
U.S.C. 1854(c)(1)(A)). Because the Council failed to take action to
recommend an FMP necessary for the conservation and management of the
Cook Inlet EEZ salmon fishery, NMFS developed amendment 16 to the
Salmon FMP and this final rule pursuant to section 304(c) of the
Magnuson-Stevens Act in order to comply with rulings from the U.S.
Court of Appeals for the Ninth Circuit and the U.S. District Court for
the District of Alaska, and to ensure the Salmon FMP is consistent with
the Magnuson-Stevens Act.
Amendment 16 Overview
Amendment 16 incorporates the Cook Inlet EEZ into the Salmon FMP as
the Cook Inlet EEZ Area (defined as the EEZ waters of Cook Inlet north
of a line at 59[deg]46.15' N), thereby bringing the salmon fishery that
occurs within it under Federal management by the Council and NMFS.
Two different sectors participate in the Cook Inlet EEZ Area salmon
fishery: the commercial drift gillnet sector and the recreational
sector. Historically, the commercial drift gillnet fleet has harvested
over 99.99 percent of salmon in the Cook Inlet EEZ Area. Under this
action, all salmon fishing in the Cook Inlet EEZ Area is managed by
NMFS and the Council separately from adjacent State of Alaska (State)
water salmon fisheries.
Amendment 16 revises the Salmon FMP, beginning with an updated
history of the FMP and introduction in chapter 1, as well as a revised
description of the fishery management unit in chapter 2 that includes
the Cook Inlet EEZ Area as a separate and distinctly managed area. The
management and policy objectives in chapter 2 are revised to include
consideration of the Cook Inlet EEZ Area. Amendment 16 consolidates
chapters describing management of the Salmon FMP's East Area and West
Area into chapter 3. No substantive changes are made to Salmon FMP
content related to the East Area and West Area.
A new chapter 4 comprehensively describes Federal management
measures and the roles and responsibilities of NMFS and the Council in
managing the Cook Inlet EEZ Area salmon fishery. In particular, chapter
4 defines all required conservation and management measures, including
maximum sustainable yield (MSY), optimum yield (OY), and status
determination criteria, and includes an outline of the harvest
specifications process. Chapter 4 also describes required Federal
permits; fishing gear restrictions; fishing time and area restrictions;
NMFS inseason management provisions; and monitoring, recordkeeping, and
reporting requirements.
Chapter 5 contains all content related to domestic annual
harvesting and processing capacity, finding that all salmon fisheries
off Alaska can be fully utilized by U.S. harvesters and processors.
This finding is unchanged by this action.
Chapter 6 contains information on Essential Fish Habitat and
Habitat Areas of Particular Concern and is not modified by this action.
Amendment 16 removes the outdated Fishery Impact Statement in the
Salmon FMP. The Analysis prepared for amendment 16 contains the Fishery
Impact Statement for the Cook Inlet EEZ salmon fishery and this action.
[[Page 34719]]
Maximum Sustainable Yield and Optimum Yield
Under amendment 16, MSY and OY are specified consistent with the
National Standard guidelines and are briefly described below. The
definitions of MSY and OY are explained in greater detail in the
preamble to the proposed rule and remain unchanged in this final rule.
MSY is specified for salmon stocks and stock complexes in Cook
Inlet and defined as the maximum potential yield, which is calculated
by subtracting the lower bound of the escapement goal (or another
escapement value as recommended by the Council's Scientific and
Statistical Committee (SSC) based on the best scientific information
available) from the total run size for stocks where data are available.
An escapement goal is the number of spawning salmon likely to result in
sustainable yields over a broad range of expected conditions. Any fish
in excess of that necessary to achieve the escapement goal for each
stock or stock complex are theoretically available for harvest under
this definition of MSY. For stocks where escapement is not known,
historical catch is used as a proxy for MSY.
Amendment 16 defines the OY range for the Cook Inlet EEZ salmon
fishery in the Salmon FMP as the range between the averages of the
three lowest years of total estimated EEZ salmon harvest and the three
highest years of total estimated EEZ salmon harvest from 1999 to 2021.
This definition of OY tempers the influence of extreme events in
defining OY (e.g., fishery disasters at the low end, or extremely large
harvests at the high end), thereby resulting in a range of harvests
that are likely to be sustainable and provide the greatest net benefit
to the Nation into the future.
Status Determination Criteria and Annual Catch Limits
Amendment 16 specifies objective and measurable criteria for
determining when a stock or stock complex is subject to overfishing or
is overfished. These are referred to as status determination criteria
and are established during the harvest specification process and
evaluated each year after fishing is complete.
Amendment 16 establishes a tier system to assess salmon stocks
based on the amount of available information for each stock. NMFS
annually assigns each salmon stock to a tier based on the best
available scientific information during the harvest specifications
process as follows:
<bullet> Tier 1: salmon stocks with escapement goals and stock-specific
estimates of harvests
<bullet> Tier 2: salmon stocks managed as a complex, with specific
salmon stocks as indicator stocks
<bullet> Tier 3: salmon stocks or stock complexes with no reliable
estimates of escapement
For stocks and stock complexes where escapement is known (Tier 1),
or escapement of indicator stocks is thought to be a reliable index for
the number of spawners in a stock complex (Tier 2), overfishing is
defined as occurring when the fishing mortality rate in the Cook Inlet
EEZ Area (F<INF>EEZ</INF>) exceeds the maximum fishery mortality
threshold (MFMT). The MFMT is defined as the maximum potential fishing
mortality rate in the EEZ above which overfishing occurs for Tier 1 and
2 stocks, expressed as an exploitation rate that is assessed over one
generation.
For Tier 1 and Tier 2 stocks, the Salmon FMP defines the
overfishing limit (OFL) as the amount of salmon harvest in the EEZ for
the coming year that corresponds with the spawning escapement target
not being achieved, based on information available preseason.
Acceptable biological catch (ABC) is established based on the OFL. As
an ABC control rule, ABC must be less than or equal to OFL, and the SSC
may recommend reducing ABC from OFL to account for scientific
uncertainty, including uncertainty associated with the assessment of
spawning escapement goals, forecasts, harvests, and other sources. The
annual catch limit (ACL) for each stock is set equal to ABC.
For Cook Inlet salmon, the minimum stock size threshold (MSST)--the
level of biomass below which a stock would be considered overfished--is
calculated for stocks in Tier 1 and 2 as follows: a stock or stock
complex is overfished when summed escapements over a generation fall
below one half of summed spawning escapement goals over that
generation.
For Tier 3 stocks, which have no reliable estimates of escapement,
overfishing is defined as occurring when harvest exceeds the OFL. The
OFL for Tier 3 stocks is set as the maximum EEZ catch of the stock
multiplied by the generation time (years). The result of this
calculation is compared against the cumulative EEZ catch of the stock
for the most recent generation. The SSC may recommend an alternative
catch value for the OFL on the basis of the best scientific information
available. As with Tier 1 and 2 stocks, ABC for these stocks must be
set less than or equal to the OFL, and may be reduced by a buffer to
account for scientific uncertainty. For Tier 3 stocks or stock
complexes with escapement goals for a suitable indicator stock, the
MSST is calculated the same as for Tier 1 and 2 stocks. For Tier 3
stock complexes without any suitable indicator stocks with escapement
goals, it is not possible to calculate MSST.
While OFL, ABC, and ACL are calculated based on the best scientific
information available preseason when harvest specifications must be
established, realized harvest and escapement data are used post-season
to determine whether ACLs were exceeded, whether overfishing occurred,
and whether any stocks are overfished. Accountability measures are
applied to prevent ACL overages and, if they occur, to prevent the
recurrence of any ACL overages.
Harvest Specifications and Annual Processes
Amendment 16 establishes a harvest specification process for the
Cook Inlet EEZ Area, along with specific definitions of required status
determination criteria using the tier system described in the previous
section.
A Stock Assessment and Fisheries Evaluation (SAFE) report provides
the SSC and Council with a summary of the most recent biological
condition of the salmon stocks, including all status determination
criteria, and the social and economic condition of the fishing and
processing industries. NMFS develops the SAFE report for the Cook Inlet
EEZ Area, with public and scientific review through the Council process
and public review through publication of the proposed salmon harvest
specifications in the Federal Register.
The SAFE report summarizes the best available scientific
information concerning the past, present, and possible future condition
of Cook Inlet salmon stocks and fisheries, along with ecosystem
considerations, taking into account any uncertainty. This includes
recommendations of OFL, ABC, and MSST that are calculated following the
tier system described above. The SAFE report will include a final post-
season evaluation of the previous fishing year based on realized
catches and escapement with all information needed to make
``overfishing'' and ``overfished'' determinations, as well as
recommendations to develop harvest specifications for the upcoming
fishing year. In providing this information, the SAFE report uses a
time series of historical catch for each salmon stock,
[[Page 34720]]
including estimates of retained and discarded catch taken in the salmon
fishery; bycatch taken in other fisheries; catch in State commercial,
recreational, personal use, and subsistence fisheries; and catches
taken during scientific research (e.g., test fisheries).
The SAFE report also provides information needed to document
significant trends or changes in the stocks, marine ecosystem, and
fisheries over time, as well as the impacts of management. The SAFE
report will be developed to contain economic, social, community,
essential fish habitat, and ecological information pertinent to the
success of salmon management or the achievement of Salmon FMP
objectives.
The SSC reviews the SAFE report each year and recommends the OFL,
ABC, MFMT, and MSST for each stock or stock complex, which then
constrain the maximum allowable harvest for each stock based on biology
and scientific uncertainty identified in the assessments. This SSC
review constitutes the official peer review of scientific information
used to manage the Cook Inlet EEZ Area salmon fishery for purposes of
National Standard 1 and for the purposes of the Information Quality
Act. Upon review and acceptance by the SSC, the SAFE report, after
incorporating any associated SSC comments, constitutes the best
scientific information available for purposes of the Magnuson-Stevens
Act.
Total allowable catches (TACs) are set for the Cook Inlet EEZ
commercial salmon fishery. A TAC is a limit on the annual catch of a
stock, stock complex, or species that is the management target of the
fishery, and operates as an accountability measure that accounts for
management uncertainty to ensure total catch remains at or below the
ACL for each stock. In the Cook Inlet EEZ, TACs will initially be set
at the species level because it is not currently possible to
distinguish among individual stocks of the same species when monitoring
harvests during the fishing season. TACs are set considering the
estimated proportional contributions of each stock to total harvest of
a species such that ACLs are not expected to be exceeded for any
component stock if all TACs are fully achieved. Because of the
uncertainty inherent to estimating the proportional contributions of
each stock to total harvest pre-season, species-level TACs are reduced
from the combined ACLs of component stocks by an appropriate buffer
that accounts for the degree of management uncertainty.
NMFS will establish harvest specifications each year by publishing
proposed and final salmon harvest specifications in the Federal
Register. NMFS will consider public comments on proposed harvest
specification prior to making a final decision. If approved, final
harvest specifications are issued with any applicable modifications and
the agency responses to public comments.
Changes From Proposed to Final Amendment 16
After considering public comments, NMFS revised amendment 16 to
specify the salmon stocks or stock complexes for which status
determination criteria are being established, and, as recommended by
the SSC at their February 2024 meeting, to better describe how the OFL
would be set preseason. For Tier 1 stocks, the preseason OFL was
updated in accordance with the SSC recommendation that it be based
solely on the preseason total run size for the coming fishing season
(equation 6 within section 4.2.4 of the Salmon FMP) rather than on the
generational (multi-year) formula that was defined in equations 8 and 9
of proposed amendment 16. For Tier 3 stocks, the language that
describes how the preseason OFL is set was updated in accordance with
the SSC recommendation that rather than considering only maximum
historical catch, the preseason OFL could also be based on other values
such as average or maximum catch for a particular period of time in the
catch history. Finally, several technical corrections were also made to
improve formatting consistency and to eliminate redundancy in the FMP.
Final Rule
This final rule modifies Federal regulations to implement amendment
16 by revising the definition of Salmon Management Area at 50 CFR 679.2
to redefine the Cook Inlet Area as the Cook Inlet EEZ Area and
incorporate it into the Federal Salmon Management Area. This final rule
creates figure 22 to 50 CFR part 679 to show the location of the Cook
Inlet EEZ Area. Regulations at Sec. 600.725 are modified to authorize
the use of drift gillnet gear for the Cook Inlet EEZ Area commercial
salmon fishery. Existing regulations related to salmon fisheries under
the Salmon FMP throughout part 679 are moved to subpart J beginning at
Sec. 679.110. Management measures necessary for the Cook Inlet EEZ
Area are added to subpart J. The following sections provide a summary
of management measures implemented by this final rule.
Federal Commercial Fishing Season and Fishing Periods
Under this final rule, the Cook Inlet EEZ Area commercial drift
gillnet fishing season begins each year on either the third Monday in
June or June 19, whichever is later. For 2024, the third Monday in June
is June 17, so the season will begin on June 19. However, because June
19 falls on a Wednesday--which as described below is not an open
fishing period--the first day of fishing in the 2024 Cook Inlet EEZ
Area commercial fishing season will be on Thursday, June 20.
On or after the season start date, NMFS will open the Cook Inlet
EEZ Area for drift gillnet fishing for two, 12-hour periods each week,
from 7 a.m. Monday until 7 p.m. Monday, and from 7 a.m. Thursday until
7 p.m. Thursday, a schedule that will continue until July 15 unless a
harvest limit (TAC) is reached. From July 16 to July 31, drift gillnet
fishing will be open for one 12-hour period per week from 7 a.m. until
7 p.m. on Thursdays, unless a TAC is reached before that time. From
August 1 to August 15, the Cook Inlet EEZ Area will again be open for
drift gillnet fishing for two, 12-hour periods each week, from 7 a.m.
Monday until 7 p.m. Monday, and from 7 a.m. Thursday until 7 p.m.
Thursday unless a TAC is reached before that time. The Cook Inlet EEZ
Area will be closed to drift gillnet fishing when the TAC is reached,
or on August 15, whichever comes first.
Inseason Management for Commercial Fishing
NMFS will actively monitor and manage the commercial salmon fishery
in the Cook Inlet EEZ Area throughout the fishing season by exercising
the inseason management authorities described in this rule. In
regulations at Sec. 679.118(c)(1)(i), this final rule provides NMFS
the authority to prohibit commercial salmon fishing in the Cook Inlet
EEZ Area. In regulations at Sec. 679.25, this final rule provides NMFS
inseason authority to adjust a TAC for any salmon species or stock and
to close or open the Cook Inlet EEZ Area as necessary to prevent
overfishing or prevent underharvest of a TAC for any species or stock
(assuming there are no countervailing conservation concerns regarding
co-occurring species or stocks).
Fishing will occur during the regularly scheduled fishing periods
described above. Throughout the fishing season, NMFS will project the
additional harvest expected from each additional opening of the fishery
based on the number of participating vessels,
[[Page 34721]]
catch rates, and any other available information. NMFS will close the
Cook Inlet EEZ Area to commercial fishing for salmon if projections
indicate that an additional fishery opening is expected to exceed any
specified TAC. NMFS will implement inseason management actions through
publication in the Federal Register, consistent with the Administrative
Procedure Act (APA).
NMFS will monitor all available sources of information during the
fishery to evaluate whether the TAC remains appropriate. If the best
scientific information available indicates that the number of salmon
returning to Cook Inlet is significantly different than what was
forecasted, NMFS may adjust management of the fishery using the
adjustment authorities described above and specified in regulations at
Sec. 679.25. If significantly fewer fish return relative to the
forecast, NMFS may close the fishery before a TAC is reached or before
the season closure date to prevent overfishing. This may be determined
based on fishery catches, test-fishery catches, escapement, or other
scientific information.
NMFS may also consider an inseason adjustment to modify the TAC if
scientific information indicates that salmon abundance is significantly
higher than forecasted. To implement any inseason adjustment, NMFS
publishes a temporary rule in the Federal Register and considers all
public comments on the action. Any such action must not result in
overfishing on any other co-occurring fish stocks and will also
consider the potential impacts of such an action to all Cook Inlet
salmon harvesters. NMFS could not adjust the TAC above any ABC or
allowable de minimis amounts set forth in the harvest specifications
established for the Cook Inlet EEZ Area in that fishing year without
engaging in notice and comment rulemaking to amend the harvest
specifications.
NMFS will use the authorities described above to achieve
conservation and management goals. These tools may be used to either
increase or decrease harvests in the Cook Inlet EEZ Area drift gillnet
fishery as appropriate based on the specified TAC amounts, the amount
already harvested, and other available information on inseason salmon
abundance.
Federal Management Area
The management area is all Federal waters of upper Cook Inlet (EEZ
waters of Cook Inlet north of a line at 59[deg]46.15' N).
Retention of Bycatch
Drift gillnet vessels fishing in the Cook Inlet EEZ Area may retain
and sell non-salmon bycatch including groundfish (e.g., Pacific cod,
pollock, flounders, etc.) if they have a groundfish Federal fisheries
permit (FFP). These are referred to as incidental catch species and
this final rule allows retention of these species up to a specified
maximum retainable amount (MRA). Drift gillnet vessels retaining non-
salmon incidental catch species are also required comply with all State
requirements when landing these fish in Alaska. The MRA of an
incidental catch species is calculated as a proportion (percentage) of
the weight of salmon on board the vessel.
Table 10 to 50 CFR part 679 establishes MRA percentages in the Gulf
of Alaska (GOA) and applies to the Cook Inlet EEZ Area. For commercial
salmon fishing in the Cook Inlet EEZ Area, the basis species are
salmon, which is classified as ``Aggregated amount of non-groundfish
species'' in the table for the purposes of the calculation. To obtain
the MRAs for each incidental catch species, multiply the retainable
percentage for the incidental catch species from table 10 by the round
weight of salmon (Basis Species: Aggregated amount of non-groundfish
species) on board. For example, if there were 100 pounds (45.36 kg) of
salmon aboard the vessel, then 20 pounds (9.07 kg) of pollock and 5
pounds (2.27 kg) of aggregated rockfish could be retained, because
pollock has a retainable percentage of 20 and aggregated rockfish has a
retainable percentage of 5 in table 10 when the basis species is the
aggregated amount of non-groundfish species (i.e. salmon). Pacific
halibut are not defined as a groundfish and may not be retained by
drift gillnet vessels.
Cook Inlet EEZ Area Commercial Salmon Fishing Monitoring,
Recordkeeping, and Reporting Requirements
This action manages the Cook Inlet EEZ Area salmon fishery
separately from the adjacent State waters salmon fisheries.
Recordkeeping and reporting requirements for commercial salmon fishing
vessels operating in the Cook Inlet EEZ Area are specified at Sec.
679.115. This final rule requires processors to report all landings of
Cook Inlet salmon harvested in the EEZ through eLandings by noon of the
day following completion of the delivery.
Commercial salmon fishing vessels, processors, and other entities
receiving deliveries of Cook Inlet EEZ Area salmon (i.e., fish
transporters, catcher sellers, and direct marketers) must obtain
Federal permits and comply with Federal recordkeeping, reporting, and
monitoring requirements consistent with regulations at Sec. 679.114.
While operating, all entities required to have any Federal salmon
permit(s) for the Cook Inlet EEZ Area must have a legible copy of each
valid permit in either paper or electronic format.
Requirements for Commercial Salmon Fishing Vessels
Harvesting vessel owners are required to obtain a Salmon Federal
Fisheries Permit (SFFP). NMFS will issue SFFPs at no charge to the
owner or authorized representative of a vessel. An SFFP will authorize
a vessel of the United States to conduct commercial salmon fishing
operations in the Cook Inlet EEZ Area, subject to all other Federal
requirements. An SFFP applicant must be a citizen of the United States.
NMFS will issue SFFPs after receipt, review, and approval of a complete
SFFP application. SFFPs will have a 3-year application cycle. Once a
vessel owner or authorized representative obtains an SFFP, it is valid
until the expiration date shown on the permit, which is after 3 years
if issued at the beginning of a permit cycle. Participants must
maintain a physical or electronic copy of their valid SFFP aboard the
named vessel. As with other Federal fisheries, if a vessel owner or
authorized representative surrenders an SFFP, they could not obtain a
new SFFP for that vessel until the start of the next 3-year permit
cycle.
The SFFP is associated with a specific vessel and not transferable
to another vessel. If the vessel is sold, the new owner will need to
apply for an SFFP amendment from NMFS to reflect the new owner or
authorized representative of the vessel. A vessel could not operate in
the Cook Inlet EEZ Area fishery until the SFFP amendment was complete
and the amended SFFP issued. The SFFP number is required to be
displayed on the vessel's hull and buoys attached to the vessel's drift
gillnet.
For a vessel being leased, the vessel operator is considered the
authorized representative of the SFFP holder and no amendments to the
permit are required. The vessel operator is subject to all SFFP
requirements and limitations and liable for any violations.
This final rule requires commercial salmon fishing vessels to
operate a Vessel Monitoring System (VMS) as specified at Sec.
679.28(f)(6)(x). VMS transmits the real-time GPS location of fishing
vessels to NMFS. A vessel with an SFFP is required to keep VMS active
at all times when operating with drift
[[Page 34722]]
gillnet gear on board in the waters of Cook Inlet any day the Cook
Inlet EEZ Area is open to commercial salmon fishing. This includes when
operating within State waters to ensure that entire fishing trips are
monitored and to help verify that no fishing occurred within State
waters during a fishing trip that included salmon harvest in the Cook
Inlet EEZ, or that a vessel with an SFFP does not fish in Federal
waters during the same calendar day it fishes in State waters.
To collect catch and bycatch information, this final rule requires
vessels to use a Federal fishing logbook as specified at Sec.
679.115(a)(1). Commercial salmon fishing vessels will record the start
and end time and GPS position of each set, as well as a count of the
catch and bycatch. Logbook sheets are submitted electronically to NMFS
by the vessel operator when the fish are delivered to a processor. The
data provided by the logbooks will provide information to satisfy the
Magnuson-Stevens Act Standardized Bycatch Reporting Methodology (SBRM)
requirement (16 U.S.C. 1853(a)(11)).
State requirements, including possession of appropriate State
Commercial Fisheries Entry Commission (CFEC) permit(s), continue to
apply for drift gillnet vessels landing salmon or other species caught
in the EEZ within the State or entering State waters.
This final rule prohibits commercial salmon fishing vessels from
landing or otherwise transferring salmon caught in the Cook Inlet EEZ
Area within the EEZ off Alaska. Commercial salmon fishing vessels
delivering to tenders may deliver salmon caught in the Cook Inlet EEZ
Area only to a tender vessel operating in State waters. This final rule
prohibits processing (as defined by Federal regulations at Sec. 679.2)
salmon harvested in the Cook Inlet EEZ Area in the EEZ off Alaska in
order to ensure historical participants and operation types are not
displaced. Commercial salmon fishing vessels are allowed to gut, gill,
and bleed salmon prior to landing but cannot freeze or further process
salmon prior to landing their catch (freezing is considered processing
per Federal regulations at Sec. 679.2 and therefore is prohibited in
Cook Inlet EEZ waters).
Requirements for Processors and Other Entities Receiving Deliveries of
Commercially Caught Cook Inlet EEZ Salmon
This final rule requires processors that receive and process
landings of salmon that are caught in the Cook Inlet EEZ Area by a
vessel authorized by an SFFP to obtain a Salmon Federal Processor
Permit (SFPP). This includes any person, facility, vessel, or
stationary floating processor that receives, purchases, or arranges to
purchase and processes unprocessed salmon harvested in the Cook Inlet
EEZ Area, except registered salmon receivers. Persons or businesses
that receive landings (deliveries) of Cook Inlet EEZ salmon from
harvesting vessels but do not immediately process it, or transport it
to another location for processing, are required to obtain a Registered
Salmon Receiver Permit (RSRP). If a tender vessel or vehicle receiving
deliveries of salmon is operated by an SFPP holder, it may operate
under the SFPP and does not need to obtain an RSRP. SFPP and RSRP
holders may not receive deliveries or process salmon that were
harvested in the Cook Inlet EEZ Area while in the Cook Inlet EEZ Area
or any EEZ waters.
SFPP and RSRP holders are required to report all salmon landings
through eLandings by noon of the day following completion of the
delivery. Landings must be reported using existing Cook Inlet drift
gillnet statistical areas, with the addition of an EEZ identifier and a
requirement to identify the Federal permit associated with each
landing.
NMFS issues SFPPs and RSRPs on a 1-year cycle. If the ownership of
an entity holding a SFPP or RSRP changes, the new owner will need to
submit an application for an amended permit. An amended permit is
issued with a new permit number to reflect the change.
Because SFPPs are facility-specific, one SFPP is required for every
processing facility, even if a facility is controlled by a company
already holding an SFPP for another processing facility. An RSRP is
required for each entity receiving but not processing landings of Cook
Inlet EEZ salmon at the location of the delivery if they are not
operated by an SFPP holder. If a single entity operates multiple
vehicles or vessels receiving landings of Cook Inlet EEZ salmon, each
one of those vehicles or vessels could use the RSRP held by the entity.
This includes fish transporters or buying stations unaffiliated with an
SFPP holder that receive deliveries directly from harvesting vessels.
For direct-marketing operations where the owner or operator of a
commercial salmon fishing vessel catches and processes their catch,
both an SFFP and an SFPP are required. For catcher-seller operations
where the owner or operator of a harvesting vessel catches and sells
unprocessed salmon (e.g., whole fish or headed and gutted) directly to
someone other than an SFPP or RSRP holder, both an SFFP and an RSRP are
required.
Other Commercial Fishing Management Measures and Prohibitions
This final rule defines the legal gear for the Cook Inlet EEZ Area
drift gillnet fishery consistent with legal gear in the State waters
drift gillnet fishery, to the extent practicable (see Sec.
679.118(f)). Legal drift gillnet gear is no longer than 200 fathoms
(365.76 m) in length, 45 meshes deep, and has a mesh size no greater
than 6 inches (15.24 cm). Buoys at each end of the drift gillnet must
be marked with the participant's SFFP number.
Gillnets will be measured, either wet or dry, by determining the
maximum or minimum distance between the first and last hanging of the
net when the net is fully extended with traction applied at one end
only. It is illegal to stake or otherwise fix a drift gillnet to the
seafloor. The float line and floats of drift gillnets must float on the
surface of the water while the net is fishing, unless natural
conditions cause the net to temporarily sink.
This final rule includes the following prohibitions specified at
Sec. 679.117 for drift gillnet fisheries in the Cook Inlet EEZ Area:
<bullet> Vessels are prohibited from fishing in both State and
Federal waters on the same day, or otherwise having on board or
delivering fish harvested in both EEZ and State waters, to ensure
accurate catch accounting for Federal managers.
<bullet> Vessels cannot have salmon harvested in any other fishery
on board.
<bullet> Vessels are prohibited from having gear in excess of the
allowable configuration or deploying multiple nets.
<bullet> Vessels are prohibited from participating in other
fisheries while operating drift gillnet gear for salmon in the Cook
Inlet EEZ Area and are not allowed to have other fishing gear on board
capable of catching salmon while commercial fishing for salmon in the
Cook Inlet EEZ Area (i.e., operating drift gillnet gear).
<bullet> Because vessels legally participating in adjacent State
water salmon fisheries may transit across the Cook Inlet EEZ Area,
vessels can have other fishing gear on board while moving through the
Cook Inlet EEZ Area, but are prohibited from commercial fishing for
salmon within the Cook Inlet EEZ Area on any day they are participating
in State water salmon fisheries.
<bullet> Manned or unmanned aircraft cannot be used to locate
salmon or otherwise direct fishing.
<bullet> Vessels are prohibited from discarding any salmon caught
while harvesting salmon using drift gillnet gear in the Cook Inlet EEZ
Area.
[[Page 34723]]
<bullet> Vessels are prohibited from commercial or recreational
fishing for salmon in the Cook Inlet EEZ Area contrary to notification
of inseason action, closure, or adjustment issued under Sec. 679.25 or
Sec. 679.118.
Cook Inlet EEZ Recreational Fishing Management Measures
This final rule includes management measures for recreational
salmon fishing in the Cook Inlet EEZ Area as specified at Sec.
679.119. NMFS establishes bag and possession limits in Federal
regulations. For Chinook salmon, from April 1 to August 31, the bag
limit is one Chinook salmon per day including a total limit of one in
possession of any size. From September 1 to March 31, the bag limit is
two Chinook salmon per day including a total limit of two in possession
of any size. For coho (silver) salmon, sockeye salmon, pink salmon, and
chum salmon there is a combined six fish bag limit per day, including a
total limit of six in possession of any size. However, only three fish
per day, including a total limit of three in possession, may be coho
salmon.
In addition to Federal bag limits, recreational anglers are
constrained by State bag and possession limits if landing fish in
Alaska. Because of this, an angler cannot exceed State limits when
landing fish in Alaska, or otherwise have both an EEZ limit and a State
limit on board at the same time in either area.
Recreational fishing is open for the entire calendar year. In
regulations at Sec. 679.118(c)(1)(ii), this final rule provides that
NMFS may prohibit, through an inseason management action, retention of
individual salmon species while still allowing harvest of other salmon
species if necessary. In addition to prohibiting retention, NMFS may
also prohibit fishing for one or more salmon species if required for
conservation. Inseason management actions for the recreational sector
will be published in the Federal Register and subject to the same
process and timing limitations outlined for the commercial sector in
the Cook Inlet EEZ.
Recreational fishing for salmon in the Cook Inlet EEZ Area may only
be done using hook and line gear with a single line per angler with a
maximum of two hooks. Salmon harvested must not be filleted or
otherwise mutilated in a way that could prevent determining how may
fish had been retained prior to landing. Gills and guts may be removed
from retained fish prior to landing. Any salmon that is not returned to
the water with a minimum of injury counts toward an angler's bag limit.
Federal managers will review any available developing inseason
information, including escapement data, and may prohibit retention of
one or more salmon species if additional harvest could not be
supported. This final rule does not establish a TAC specific to the
recreational sector because the recreational harvest in the Cook Inlet
EEZ has been small historically (less than 100 fish per year), but
estimated removals in combination with commercial harvests are
evaluated against the ACL to ensure they are not exceeded and to
implement accountability measures, if required, for future seasons.
The State's existing Saltwater Charter Logbook, the Statewide
Harvest Survey, and creel surveys provide the information needed to
account for recreational harvest in the Cook Inlet EEZ Area, as well as
satisfy the Magnuson-Stevens Act SBRM requirement.
Changes From Proposed to Final Rule
In response to public comment, this final rule modifies the number
of commercial salmon fishing periods in the Cook Inlet EEZ Area.
The commercial fishing season was proposed to extend from
approximately June 19 to August 15 each year, with two, 12-hour fishing
periods each week. Overall, public comments highlighted a conservation
and management concern associated with allowing two days of harvest per
week between July 16 and July 31. Under the status quo of State
management, this is the time period during which there has been a
single drift gillnet opener per week in order to allow salmon bound for
Northern Cook Inlet to pass through Federal waters (a management option
many public commenters referred to as a ``conservation corridor''). The
State requested that NMFS close the EEZ to all commercial fishing after
July 15 to avoid conservation concerns, including stocks not achieving
spawning escapement goals. In addition, multiple Alaska Native tribes
from the Cook Inlet region, communities in Northern Cook Inlet, and
regional sportfishing organizations all expressed concern that two
fishery openings per week from July 16-July 31--which would provide
significantly more fishing opportunity to the drift gillnet fleet--was
likely to result in conservation concerns when compared to the status
quo of one opening per week during this time period (see Comment 34).
In all, these comments emphasized that reducing drift gillnet openings
to one per week from July 16-July 31 is a management measure important
to stakeholders and Alaska Native tribes in Northern Cook Inlet because
it gives salmon stocks of lower abundance more opportunities to pass
through the EEZ during the time period they are most likely to be
present in Federal waters.
In light of the public comments identifying significant potential
conservation concerns, NMFS reviewed information contained in the
Analysis and 2024 SAFE report to further consider the potential impacts
that could result from increased commercial fishing opportunity during
this late-July migratory period. State management measures that limited
drift gillnet fishing effort in the Cook Inlet EEZ began in 2015. As
described in section 3.1.2 of the Analysis, under Federal reference
points, overfishing likely occurred on ``other sockeye salmon'' in
2008, and on Cook Inlet coho salmon in 2013. Both of these stock
complexes have substantial components that originate from the Northern
District. Overfishing is not thought to have occurred on any stock
since the State began restricting fishing in the EEZ in late July.
Susitna (Yentna) River sockeye salmon were declared a State stock of
concern in 2008 after repeated failures to meet escapement goals. After
subsequent restrictions to fishing, including the reductions to EEZ
fishing opportunities in late July, this stock met escapement goals to
the point where it was delisted from being a stock of concern by the
State of Alaska's Board of Fisheries (BOF) in 2020. Given the
historical evidence suggesting an increased likelihood of conservation
concerns for these stocks when there is additional EEZ fishing effort
from July 16 until July 31, and because some salmon stocks have
continued to miss spawning escapement goals during recent years when
there was only a single drift gillnet opening per week from July 16-
July 31, NMFS has determined that it would be unwise to increase the
number of fishing periods in late July from the status quo. Therefore,
this final rule reduces the proposed number of openings to one per week
during this period. The final rule, however, does not adopt the State's
request to close the EEZ July 15. As explained in this final rule, the
fishery will be open for one opening per week July 16-July 31 and two
openings per week August 1-August 15, unless a TAC is reached.
NMFS expects that one opening per week in late July will allow for
the harvest of surplus yield to the extent practicable while still
achieving spawning escapement goals in most years. If TACs allow for
additional harvest in August, the fishery will
[[Page 34724]]
return to two openings per week from August 1 to August 15. This
approach is expected to reduce the risk of higher than expected
harvests in the EEZ that could result in overfishing or reduce or
eliminate the harvestable surplus of one or more salmon stocks for all
other salmon users in Cook Inlet.
Further, NMFS expects this change will better allow the drift
gillnet fleet to target the stocks of highest abundance while reducing
the risk of early closures because a TAC is reached for a stock of
lower abundance. As explained above and in the preamble to the proposed
rule, the Cook Inlet EEZ salmon fishery will be managed using TACs.
Allowing salmon stocks of lower abundance bound for Northern Cook Inlet
more opportunities to pass through the EEZ in July--particularly coho
and Chinook salmon--means it is less likely the fishery will close
early due to reaching the TAC for a stock of lower abundance before the
drift gillnet fleet is able to harvest the TAC for abundant sockeye
salmon. Additionally, spreading out the sockeye salmon harvest
throughout the season by reducing fishing periods in late July will
reduce pressure on Northern District sockeye salmon--which are Tier 3
stocks with less known conservation status--as more of the salmon in
the EEZ in August are expected to be from the highly abundant Tier 1
Kenai and Kasilof stocks for which there is better information to
inform inseason management decisions.
In this final rule, NMFS also clarified language at Sec.
679.28(f)(6)(x) to clearly define when and where VMS is required to be
used by vessels named or required to be named on a SFFP. An operational
and transmitting VMS unit that complies with the requirements in Sec.
679.28(f) must be carried by any such vessel operating in the waters of
Cook Inlet with drift gillnet gear on board during a calendar day when
commercial salmon fishing is authorized in the Cook Inlet EEZ Area. The
corresponding prohibition at Sec. 679.117(b)(1)(xiv) is similarly
revised to prohibit operation contrary to requirements specified at
Sec. 679.28(f)(6)(x). This final rule also adds a definition of the
``waters of Cook Inlet'' at Sec. 679.2. For purposes of Sec. Sec.
679.28(f)(6)(x) and 679.117(b)(1)(xiv), the waters of Cook Inlet
includes all waters north of a line from Cape Douglas (58[deg]51.10' N)
to Point Adam (59[deg]15.27' N). In sum, these changes from proposed to
final regulations clarify that the VMS requirement for SFFP holders
applies: (1) on days when directed fishing for salmon using drift
gillnet gear is open in the Cook Inlet EEZ Area; (2) if the vessel has
drift gillnet gear on board the vessel or deployed; and (3) if the
vessel is operating in the waters of Cook Inlet.
This final rule also modifies regulations at Sec.
679.118(c)(1)(ii) to provide NMFS the authority to prohibit fishing for
one or more salmon species if required for conservation. While the
recreational salmon fishery in the Cook Inlet EEZ Area is extremely
small, this would give NMFS all management tools potentially required
to conserve stocks at very low abundance. The most likely potential
need for this authority is because declines in Chinook salmon abundance
have, in some cases, entirely eliminated the harvestable surplus of
Chinook (i.e., escapement goals cannot be achieved even if no fish are
harvested). In this instance, even the limited mortality resulting from
catch and release fishing (i.e., what would be allowed under a
prohibition on retention) could potentially result in exceeding an ABC/
ACL. NMFS would also maintain the authority to prohibit retention of
one or more species if a closure to salmon fishing was not required to
achieve conservation objectives or avoid exceeding an ABC/ACL.
Additionally, this final rule adds two new prohibitions to Sec.
679.117 to clarify that it is unlawful for any person to: (1) engage in
commercial fishing for salmon in the Cook Inlet EEZ Area contrary to
notification of inseason action, closure, or adjustment issued under
Sec. Sec. 679.25 and 679.118 (see Sec. 679.117(b)(1)(xvi)); or (2)
engage in recreational fishing for salmon in the Cook Inlet EEZ Area
contrary to notification of inseason action, closure, or adjustment
issued under Sec. 679.118 (see Sec. 679.117(b)(2)(v)). The final rule
also makes clarifying edits to Sec. 679.117(b) as follows: (1) moves
``of the Salmon Management Area, defined at Sec. 679.2 and Figure 22
to this part,'' from Sec. 679.117(b)(1)(ii), to Sec.
679.117(b)(1)(i), which is the first time the term ``Cook Inlet EEZ
Area'' appears in Sec. 679.117(b)(1); (2) replaces the word ``set'' in
Sec. 679.117(b)(1)(v), and replaces it with ``deploy''; and (3) adds
the term ``Cook Inlet EEZ Area'' to two prohibitions applicable to
recreational fishing (see Sec. 679.117(b)(2)(ii) and (iii)).
Throughout the regulatory text, NMFS also made technical and grammar
edits to correct regulatory cross references, use consistent terms,
remove redundancy, and promote clarity.
One additional change from the proposed rule was removing a
proposed requirement that any interactions or entanglements with marine
mammals would be required to be recorded in the logbook. NMFS
determined that this requirement would be duplicative with and may be
confused with existing reporting requirements under the Marine Mammal
Authorization Program and has therefore removed the requirement from
this final rule. Participants are, however, still required to report
marine mammal interactions under the Marine Mammal Authorization
Program.
Comments and Responses
NMFS received 87 comment submissions on amendment 16 and the
proposed rule. NMFS has summarized and responded to 95 unique and
relevant comments below. The comments were from individuals,
environmental groups, local governments, the Alaska Department of Fish
and Game (ADF&G), sportfishing organizations, fishing guides, tribes
and tribal members, drift gillnet fishermen, and commercial fishing
organizations. Several comment submissions were duplicates or addressed
topics outside the scope of amendment 16 and the proposed rule.
Overall, there was a mix of support and opposition, with those comments
opposing the rule expressing concerns about expanding Federal
management to salmon fisheries, impacts to adjacent state salmon
fisheries, the cost and burden of monitoring requirements, adverse
economic impacts, preseason catch limits, the prohibition on fishing in
both state and Federal waters on the same day, and underharvest
(exceeding spawning escapement goals). The vast majority of commenters
supported some version of Federal management (mostly drift gillnet
fishers, commercial processors, and tribal groups), and a small
minority opposed any type of Federal management. Comments are organized
by topic into the following categories:
<bullet> Scope of the Fishery Management Plan
<bullet> National Standard 1
<bullet> Status Determination Criteria and Annual Catch Limits
<bullet> Inseason Management
<bullet> Cook Inlet EEZ Commercial Salmon Fishing Management Measures
<bullet> Federal Commercial Fishing Season and Fishing Periods
<bullet> Monitoring, Recordkeeping, and Reporting Requirements
<bullet> Other Commercial Salmon Fishing Management Measures and
Prohibitions
<bullet> Recreational Fishing
<bullet> National Standard 2
<bullet> National Standard 3
<bullet> National Standard 4
<bullet> National Standards 5 and 7
<bullet> National Standard 8
<bullet> National Standard 10
<bullet> Economic Impacts
[[Page 34725]]
<bullet> General Support
<bullet> General Opposition
<bullet> Tribal Comments
<bullet> Marine Mammals
<bullet> Process Concerns
<bullet> Other
Scope of the Fishery Management Plan
Comment 1: NMFS's decision to limit the scope of Federal management
to the Cook Inlet EEZ violates UCIDA v. NMFS, 837 F.3d 1055 (9th Cir.
2016), in which the Ninth Circuit Court of Appeals held that NMFS must
manage the entire ``fishery,'' including State waters.
Response: NMFS disagrees that the Ninth Circuit's decision requires
this FMP to cover both State and Federal waters. Rather, limiting NMFS
management solely to Federal waters (i.e., the Cook Inlet EEZ) is
consistent with the court's decision in UCIDA v. NMFS. In that case,
UCIDA challenged amendment 12 to the Salmon FMP, which had excluded the
Cook Inlet EEZ from the Salmon FMP. The Ninth Circuit considered only
whether NMFS had the legal authority to exclude portions of the EEZ
from the FMP. In ruling against NMFS, the Court held that NMFS must
include the Cook Inlet EEZ in the Salmon FMP because it has an
obligation to issue an FMP for each fishery under its authority that
requires conservation and management. The phrase ``under its
authority'' was critical to that Ninth Circuit decision, which
considered whether a State could manage a fishery in Federal waters
outside the context of an FMP. Nothing in UCIDA v. NMFS implied that a
Federal FMP must cover fishing that occurs in State waters if a
harvested stock occurs in both State and Federal waters. Not only was
that question not before the Ninth Circuit, but requiring NMFS to
manage in State waters through an FMP would violate the plain language
of Magnuson-Stevens Act section 306(a), which provides that states
retain management jurisdiction over fishing in state waters.
In fact, the Ninth Circuit explicitly recognized that the Cook
Inlet EEZ constitutes a fishery, stating that ``the statute requires an
FMP for a fishery, a defined term,'' and adding ``[n]o one disputes
that the exempted area of Cook Inlet''--i.e. the Cook Inlet EEZ--``is a
salmon fishery.'' 837 F.3d at 1064. The portion of Cook Inlet at issue
in the litigation over amendment 12 was the Cook Inlet EEZ, not all of
Cook Inlet. In this action, NMFS is complying with the Ninth Circuit's
decision by incorporating the very ``fishery'' at issue in that case--
the Cook Inlet EEZ salmon fishery--into the Salmon FMP.
Comment 2: NMFS's decision to limit the scope of Federal management
to the Cook Inlet EEZ violates the plain language of the Magnuson-
Stevens Act. The term ``fishery,'' as defined within section 3 of the
Magnuson-Stevens Act, requires that amendment 16 include a definition
of ``fishery'' that extends throughout the range of salmon in Cook
Inlet, including State waters.
Response: NMFS disagrees that its definition of the ``fishery''
violates the Magnuson-Stevens Act. As explained in the preamble to the
proposed rule and the response to Comment 1, the ``fishery'' that is
subject to Federal management under amendment 16 are the salmon stocks
harvested by the commercial and recreational fishing sectors within the
Cook Inlet EEZ Area. Defining the fishery as geographically constrained
to the Cook Inlet EEZ is consistent with the Magnuson-Stevens Act.
Section 3 of the Magnuson-Stevens Act broadly defines a ``fishery'' as
one or more stocks of fish that can be treated as a unit for purposes
of conservation and management and which are identified on the basis of
geographical, scientific, technical, recreational, and economic
characteristics; and any fishing for such stocks.
NMFS has determined that salmon stocks in the Cook Inlet EEZ can be
treated as a unit for purposes of conservation and management because
they all fall within the geographical management area under NMFS's
jurisdiction, the best scientific information available supports NMFS's
determination that the EEZ has unique ecological characteristics due to
the mixed stock nature of fishing in the EEZ, and fishing for these
stocks in the EEZ has distinct technical and economic characteristics
that distinguish it from State water fisheries, as discussed in the
response to Comment 55.
The Magnuson-Stevens Act expressly limits the management authority
of NMFS and the Council to the EEZ, with a narrow exception. Section
101(a) of the Magnuson-Stevens Act establishes the Nation's sovereign
rights and exclusive fishery management authority over all fish and all
Continental Shelf fishery resources within the EEZ. Section 3(11) of
the Magnuson-Stevens Act defines the inner boundary of the EEZ as a
line coterminous with the seaward boundary of each of the coastal
States. Section 302(a)(l)(G) states that the Council has authority over
the fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean
seaward of Alaska. Because Alaska's seaward boundary is 3 nautical
miles (nmi) (5.56 kilometers) from its coast (3-nmi boundary line), 43
U.S.C. 1301(b), the inner boundary of the EEZ, and therefore the
Council's authority, starts 3 nmi (5.56 kilometers) from the Alaskan
coast and extends to the outer boundary of the EEZ 200 nmi (370.4
kilometers) seaward of the coast of Alaska. In section 306, the
Magnuson-Stevens Act expressly states that it shall not be construed as
extending or diminishing the jurisdiction or authority of any State
within its boundaries. Therefore, the Magnuson-Stevens Act does not
contemplate the extension of Federal authority into State waters,
except under the very limited circumstances described in section 306(b)
(discussed further in the response to Comment 4). In sum, given the
geographic limits placed on NMFS's authority to manage fisheries, it is
necessary for the ``fishery'' to be geographically constrained to the
EEZ.
Comment 3: NMFS's decision to define the fishery as geographically
constrained to the Cook Inlet EEZ is arbitrary. There cannot be two
adjacent management schemes for salmon; one in Federal waters and one
in State waters, because one management scheme will always depend on
the other. Salmon management depends on escapement goals. That means an
FMP for just the EEZ will always depend on the State which sets the
escapement goals.
Response: Defining the fishery as geographically constrained to the
Cook Inlet EEZ is not arbitrary; it is required by the Magnuson-Stevens
Act and is consistent with fisheries management throughout the EEZ off
Alaska and throughout the U.S. Nearly all stocks harvested in the EEZ
nationwide also occur in State waters, but as explained in the response
to Comment 2, the Magnuson-Stevens Act explicitly left jurisdiction
over state waters to the states.
Recognizing Federal and State jurisdictional boundaries is a
foundational principle in the management of natural resources that
straddle jurisdictions in the U.S. In mining, forestry, oil, gas, and
fisheries, the location of the activity determines the applicable
regulations, even if the relevant resource is also present in an
adjacent jurisdiction. Furthermore, this is consistent with the
management approach for other fisheries off Alaska. For example, in the
GOA, the State manages fisheries for pollock and Pacific cod in State
waters and NMFS manages pollock and Pacific cod fisheries in Federal
waters. For these fisheries, the State determines when State waters
will be open to fishing for pollock and Pacific cod, while the Council
recommends and NMFS makes
[[Page 34726]]
those determinations for the EEZ, taking into account any anticipated
harvest in State waters.
Similar to the Federal management of the Cook Inlet EEZ, the
Pacific Fishery Management Council's Salmon FMP expressly limits
Federal management to the fisheries in EEZ waters. That FMP covers
salmon stocks caught in the EEZ off the coasts of Washington, Oregon,
and California.
NMFS disagrees that a stock of anadromous fish cannot be
successfully managed by different adjacent management regimes. NMFS and
State management agencies regularly have separate fisheries that
harvest the same stocks of fish. Management will be coordinated to the
extent practicable. NMFS will establish catch limits for the Cook Inlet
EEZ that are based on achieving escapement goals as defined in the
Federal stock assessment, while accounting for both State and Federal
expected harvests.
There are cooperative management arrangements where a single
management agency can make decisions for both State and Federal waters.
But these are dependent on a mutually accepted delegation of management
authority or international treaties. For example, NMFS's management
jurisdiction over the Bering Sea and Aleutian Islands king and Tanner
crab fisheries is limited to the Bering Sea and Aleutian Islands Area
EEZ, but because the Council recommended delegated management of the
EEZ to the State through the Crab FMP--and NMFS determined State
management was consistent with the FMP and the Magnuson-Stevens Act--
the State executes delegated management actions for crab stocks in
Federal waters while also managing these stocks within State waters.
While there is often coordination between NMFS and the State to ensure
that fishery management decisions achieve the common goal of
sustainability, State and Federal authority remains constrained by
jurisdictional limits.
Management of the Salmon FMP's East Area is different from the
management of salmon in the Cook Inlet EEZ Area because of both the
delegation of management authority to the State and the Pacific Salmon
Treaty. Management of the salmon commercial troll and recreational
fisheries in the East Area EEZ occurs across the State and EEZ boundary
because the Council voted to delegate management of the salmon
fisheries in the East Area EEZ to the State, the State was willing to
accept such a delegation of authority, and NMFS determined State
management was consistent with both the Salmon FMP and the Magnuson-
Stevens Act. The Council and NMFS considered delegating management of
the Cook Inlet EEZ to the State, similar to the arrangement in the East
Area. However, the State refused to accept delegated management on two
occasions and NMFS has no authority to compel a state to accept such
delegation. As a result, there is no alternative to having separately
managed salmon fisheries in Cook Inlet, and the State and Federal
fisheries are separated along the jurisdictional EEZ boundary.
Comment 4: Even if states generally retain jurisdiction over state
waters pursuant to Magnuson-Stevens Act 306(a), here Magnuson-Stevens
Act 306(b) requires NMFS to preempt State management and assert
management authority over salmon fishing in the state waters of Cook
Inlet.
Response: NMFS disagrees that Magnuson-Stevens Act section 306(b)
requires NMFS to assert management jurisdiction over the State waters
of Cook Inlet and/or implement management measures for State waters
through this FMP amendment.
Magnuson-Stevens Act section 306(b) includes two criteria that must
both be met before NMFS can assert management authority over fishing in
State waters: (1) the fishery must occur predominantly in the EEZ and
(2) after notice and opportunity for a hearing, the Secretary must
determine that a State is ``substantially and adversely'' affecting the
carrying out of an FMP. Even when these criteria are met, Magnuson-
Stevens Act section 306(b) explicitly states that NMFS cannot assert
management authority over internal (fresh) waters, meaning the scope of
Magnuson-Stevens Act section 306(b) is narrower than claimed by the
commenter even when it does apply.
Historically, the State has managed salmon fishing in Cook Inlet as
a single fishery with no distinction between State and Federal waters.
Under State management, approximately 75 percent of total upper Cook
Inlet salmon harvests occurred in State waters. NMFS has previously
determined that the State-managed fishery did not occur predominantly
in the EEZ, and thus for that reason alone it had no basis for
asserting management authority over State waters under Magnuson-Stevens
Act section 306(b)(1)(A). In addition, NMFS has consistently found that
State management is consistent with Magnuson-Stevens Act requirements
and the goals and objectives of the FMP. Thus, both criteria for
preemption under Magnuson-Stevens Act section 306(b) have not been
satisfied. As a result of litigation brought by drift gillnet
fishermen, among others, status quo management as a single fishery by
the State is no longer possible. NMFS acknowledges that amendment 16
will create a new fishery in Cook Inlet, which will occur entirely
within Federal waters.
Even assuming the 306(b)(1)(A) criteria was met for the Cook Inlet
EEZ salmon fishery after implementation of amendment 16--though total
harvest of Cook Inlet salmon stocks will continue to occur
predominantly within State waters--for NMFS to assert management
jurisdiction over State waters it would also have to determine that
State management ``substantially and adversely'' affects implementation
of the Salmon FMP, after notice and opportunity for a hearing. The
procedures and requirements for notice and the hearing at 50 CFR part
600, subpart G are prescriptive, none have occurred here, and NMFS has
no basis to begin proceedings at this time. No fishing has yet occurred
under amendment 16 to the Salmon FMP and this final rule, and NMFS has
no information that suggests that State action or inaction will prevent
the Council or NMFS from carrying out the management measures and
management objectives specified in amendment 16. Thus, the criteria for
preemption under Magnuson-Stevens Act section 306(b)(1)(B) has not been
satisfied.
Comment 5: Every other FMP in Alaska sets management measures,
including ACL and TAC, for the fishery in both State and EEZ waters.
The King Crab closure around Kodiak Island does not allow the fishery
in State waters to continue without direction, nor does the Pacific Cod
TAC in the GOA apply for the EEZ waters only with the State waters
fishery unregulated; the same is true for every other stock of fish
except salmon. For the Salmon FMP, NMFS is trying to make us believe
the rules governing this fishery are different, even after the Federal
court decision that have determined they are not.
Response: NMFS disagrees. Federal ACLs and TACs are not established
for State waters in other Federal FMPs. The BOF has established State
managed fisheries in State waters, for example, the GOA Pacific cod
fishery that the State manages by setting a guideline harvest level
(GHL) outside the Federal harvest specifications process. For some
fisheries, the BOF bases the GHL amount on a percentage of the Federal
ABC. However, the GHL fishery is managed by the State. To comply with
the Federal ACL regulations and National Standard 1 guidelines, NMFS
manages Pacific cod in Federal waters to ensure the sum of all State
waters and
[[Page 34727]]
Federal waters Pacific cod removals from the GOA do not exceed the
Federal Pacific cod ABC (and therefore ACL) for the GOA. Accordingly,
each year the Council recommends, and NMFS approves, a TAC in the GOA
that is set at an amount to accommodate the State's GHL for the Pacific
cod caught in State waters. This is consistent with the Magnuson-
Stevens Act and National Standard guidelines that direct, as a
fundamental component of sustainable fisheries management, that catch
should not exceed the ACL and that all sources of mortality from
fishing activities should be evaluated for stock status and
specification of Federal harvest limits. If the State changed the
applicable State waters GHL, there are no limits on the amount of
Pacific cod that may be harvested in State waters, and NMFS would
adjust the Federal TAC accordingly to ensure that total Pacific cod
removals do not exceed the Federal Pacific cod ABC and ACL. In other
words, as under amendment 16, the Federal TAC accounts for State water
harvest but does not constrain or limit State water harvest.
The commenter also appears to reference the State Pacific cod
parallel fishery. In this parallel fishery, some of the Federal TAC is
harvested in State waters, under State regulations generally mirroring
those used in Federal waters. NMFS does not establish a TAC for State
waters or manage in State waters; rather, NMFS deducts catch in the
parallel fishery from the Federal TAC per a longstanding arrangement
that ensures this fishery does not create conservation concerns. The
State originally developed and implemented parallel fisheries to
provide fishing opportunities within State waters before the State had
capacity and expertise to independently develop and manage State water
groundfish fisheries (GHL fisheries). While the State has since
developed State-managed groundfish fisheries, parallel fisheries have
been maintained to address allocation issues with respect to vessel
gear type, operation type, and size. The State opposes the Federal
management approach for salmon in the Cook Inlet EEZ Area and has not
expressed interest in either a delegation of management authority or
taking State action to develop a parallel fishery for salmon.
Therefore, NMFS must manage salmon fishing in the Cook Inlet EEZ in the
same manner as it manages the vast majority of fish stocks off Alaska--
by accounting for projected State water GHL harvest when establishing
harvest limits for the EEZ, and debiting catch that occurs in the
parallel fisheries against the Federal TAC during the fishing season.
In regards to the crab fisheries in the GOA, there are no federally
managed crab fisheries in the GOA, and there is no GOA crab FMP. The
king crab closure around Kodiak is a State management measure.
Comment 6: The proposed FMP violates both the letter and the spirit
of the District Court's ruling in 2022, the Ninth Circuit's order in
2016, and the Magnuson-Stevens Act. NMFS's repeated failure to provide
the relief requested has caused severe economic harm to the drift
gillnet fleet. Amendment 16 violates nearly all of the National
Standards and imposes a harvest plan that is both burdensome and
inefficient. Do not approve this action.
Response: NMFS disagrees. NMFS developed amendment 16 to comply
with the decisions of the Ninth Circuit and the District Court, the
Magnuson-Stevens Act, and other applicable Federal law. NMFS considered
all Magnuson-Stevens Act requirements for FMPs and balanced the
competing demands of the National Standards when developing amendment
16. NMFS finds this final rule to be consistent with all 10 National
Standards, as detailed in section 5.1 of the Analysis and further
addressed in responses to comments under the National Standard headings
below. Economic impacts are further addressed in responses to comments
below.
Because the State refused to accept delegated management authority,
amendment 16 must necessarily establish an entirely separate management
jurisdiction and, therefore, results in decreased management efficiency
relative to the status quo (management of all salmon fishing in Upper
Cook Inlet by the State). Separate Federal management infrastructure
and regulations must be established while all existing State management
measures remain in place. In order to manage the fishery in the Cook
Inlet EEZ Area, NMFS must begin collecting the data essential to manage
the fishery and required by the Magnuson-Stevens Act. In particular,
NMFS must know who is participating in the fishery, how many vessels
are active, and where catch is occurring, and must be able to debit
catch against established limits during the season to prevent
overfishing, even though collecting this information will involve new
recordkeeping, reporting, and monitoring requirements for participants
that are separate from those required in State waters.
Comment 7: NMFS is effectively deferring to State management by
managing conservatively, claiming that it is unprepared and
procedurally limited in its ability to manage the fishery.
Response: NMFS disagrees that it is implicitly deferring to State
management by managing conservatively. This will be the first year
since Alaska Statehood that there will be a federally-managed salmon
fishery in the Cook Inlet EEZ, and currently all data collection and
management infrastructure are run by the State. In light of these
realities, ``managing conservatively'' is a responsible approach to
fishery management, ensuring that NMFS does not harm salmon stocks as
it builds infrastructure and expertise, and begins collecting the data
needed to manage a new Federal fishery. It is unreasonable and
imprudent to expect that NMFS could greatly increase total harvests
from the status quo in the first year of a new fishery, with less
management flexibility, less information, and less management
experience in Cook Inlet. The best available science suggests status
quo harvest levels in the EEZ could not be significantly increased
without reducing or eliminating the harvestable surplus for other users
and further increasing the risk that stocks of lower abundance will not
achieve spawning escapement goals (which have not always been achieved
in all years even under status quo EEZ harvests). While NMFS's approach
is necessarily precautionary, the proposed 2024 Cook Inlet EEZ Area
harvest specifications (89 FR 25857, April 12, 2024) would establish
TACs for all species except coho salmon (due to elevated conservation
risks and high uncertainty) that are higher than the recent 10-year
average estimated Cook Inlet EEZ Area harvest.
As described in the preamble to the proposed rule, this action
contains all of the management measures required for NMFS to administer
and manage all salmon fishing in the Cook Inlet EEZ Area consistent
with the Magnuson-Stevens Act. No management decisions are deferred to
the State and NMFS will not rely on the State--implicitly or
otherwise--to achieve OY or prevent overfishing (one of the flaws the
District Court identified with amendment 14).
Using the best scientific information available, each year NMFS
will prepare a SAFE report and develop harvest specifications based on
the recommendations from the Council's SSC. As described in the
response to Comment 5, although NMFS must necessarily account for
projected
[[Page 34728]]
removals from State-managed fisheries in setting the harvest levels for
the Cook Inlet EEZ Area, and other Federal fisheries off Alaska, that
is part of making decisions based on best scientific information
available and consistent with National Standard 2. Accounting for State
action is not the same as deferring to State action. The processes by
which Federal reference points are independently developed and annually
reviewed is described in the preamble to the proposed rule and
amendment 16.
Although NMFS has not historically managed salmon fishing in the
Cook Inlet EEZ, it has the ability to do so successfully. Acknowledging
that the State has decades of institutional expertise and management
tools that make it currently more capable of efficient administration
(as described in the Analysis) is not an indictment of NMFS's
management. Further, while Federal notice requirements limited the
suite of management alternatives and options when developing amendment
16 and preclude rapid fishery openings and closings as occurs under
State management, no procedural limitations will prevent NMFS from
implementing amendment 16, which has been designed to comply with all
Magnuson-Stevens Act requirements. NMFS is confident it can effectively
manage this fishery.
Comment 8: Regulations for Cook Inlet should allow fishing 110
miles (177.03 km) out from the mouth of the fish spawning grounds. For
sport fishing, regulations should allow snagging one mile (1.61 km)
from the mouth of any rivers in the inlet.
Response: This final rule would allow recreational salmon fishing
in all waters of the Cook Inlet EEZ Area. EEZ waters of the West Area
(3-200 nmi (5.56-370.4 km) off Alaska) outside of the Cook Inlet EEZ
Area remain closed to commercial salmon fishing, as under the status
quo, but recreational salmon fishing is authorized. Waters within 3 nmi
(5.56 km) of shore are State waters and not subject to this action.
Comment 9: Several commenters suggested it would be best if all
salmon fishing in Cook Inlet was managed by ADF&G. Some commenters
expressed skepticism about the track record of Federal fisheries
management (e.g., halibut fishery declines and salmon bycatch concerns)
and other Federal resource management in Alaska. Other commenters noted
that the State has more expertise and better flexibility to manage
salmon, which is desirable given the complexity and challenge of salmon
management in Cook Inlet. One commenter noted that Federal management
may prioritize non-Alaskan constituencies.
Response: NMFS acknowledges the complexity and challenges of salmon
management in Cook Inlet. The challenges associated with Federal
management are identified sections 2.4 and 2.5 of the Analysis. NMFS
developed amendment 16 to address these challenges to the extent
practicable.
NMFS is required to implement Federal management of salmon fishing
in the Cook Inlet EEZ. The Ninth Circuit held that section 302(h)(1) of
the Magnuson-Stevens Act requires a Council to prepare and submit FMPs
for each fishery under its authority that requires conservation and
management. United Cook Inlet Drift Ass'n v. NMFS, 837 F.3d 1055, 1065
(9th Cir. 2016). Because NMFS determined that the Cook Inlet EEZ salmon
fishery requires conservation and management, the Ninth Circuit ruled
that it must be included in the Salmon FMP. Because of this litigation
and the State's subsequent decision not accept a delegation of
management authority for the Cook Inlet EEZ, management of all salmon
fishing in Cook Inlet by the State is not possible at this time.
Additional discussion of Federal jurisdiction is provided in the
response to Comment 3.
Further, this rule will not prioritize any constituency. Consistent
with National Standard 4, amendment 16 does not discriminate between
residents of different states in allocating fishery resources and is
fair and equitable to all fishermen. Consistency with National Standard
4 is discussed further below.
National Standard 1
Comment 10: The Magnuson-Stevens Act requires that NMFS set MSY and
OY for fishing that occurs in both Federal and state waters. Only by
doing so can NMFS ensure that the State's action in the State waters
fishery does not interfere with NMFS's obligation to follow the
Magnuson-Stevens Act in the Federal-waters fishery and achieve OY. NMFS
should define OY for both State and Federal waters so as to prevent the
overescapement caused by State management decisions.
Response: NMFS disagrees that it must set MSY and OY for fishing
that occurs in both State and Federal waters. As discussed in the
preamble to the proposed rule, MSY is a reference point, informed by
the best available scientific information. The Magnuson-Stevens Act and
National Standard 1 guidelines require that every FMP include an
estimate of MSY for the stocks and stock complexes that require
conservation and management (Sec. 600.310(e)(1)). MSY is defined as
the largest long-term average catch or yield that can be taken from a
stock or stock complex under prevailing ecological, environmental
conditions and fishery technological characteristics (e.g., gear
selectivity), and the distribution of catch among fleets (Sec.
600.310(e)(1)). Thus, under National Standard 1, NMFS acknowledges that
MSY should be defined for a stock or stock complex, regardless of where
fishing occurs, and thus it is not set for State waters or Federal
waters. Because MSY is not a management target, it does not depend on
any management actions. Rather, it describes the capacity of a stock to
be harvested sustainably, regardless of who manages fishing or how
harvest is authorized. Only by accounting for catch wherever it occurs
can NMFS understand the largest long-term average catch or yield that
can be taken from the entire stock or stock-complex. Amendment 16
provides that, for salmon stocks harvested in the Cook Inlet EEZ Area,
MSY is defined at the stock or stock complex level (as described
below), consistent with National Standard 1 guidelines for establishing
MSY. Because MSY must be defined in terms of stocks or stock complexes,
this definition of MSY does not subdivide between State and EEZ waters
in Cook Inlet.
NMFS disagrees that OY should be established for fishing occurring
in both State and Federal waters. In contrast to MSY, OY may be
established at the stock, stock complex, or fishery level (Sec.
600.310(e)(3)). With respect to the yield from a fishery, the Magnuson-
Stevens Act defines ``optimum'' as the amount of fish that will provide
the greatest overall benefit to the Nation. Under amendment 16, the
fishery is properly defined as all harvest of co-occurring salmon
stocks in the Cook Inlet EEZ for the reasons stated in Comments 1, 3,
4, and 29. Because there is limited ability to target individual stocks
of salmon in the Cook Inlet EEZ Area, stocks of varying abundance are
inevitably all harvested in the same fishing trip. The amount of
harvest that will provide the greatest overall benefit to the Nation in
this highly mixed stock fishery where vessels operating in the EEZ
cannot discriminate between stocks of varying abundance is very
different from the amount of harvest that may be optimum for stocks or
fisheries in State waters where vessels are better able to target
individual stocks of fish near their natal streams. Thus, OY is better
defined for the Cook Inlet EEZ fishery rather than at the stock or
stock complex level, taking into account the
[[Page 34729]]
interactions among various stocks in the EEZ.
Furthermore, by defining OY at the level of the Cook Inlet EEZ
fishery under Federal jurisdiction, NMFS ensures that OY is entirely
within its purview and control to achieve on a continuing basis. In
vacating amendment 14, the U.S. District Court for the District of
Alaska found that NMFS had impermissibly deferred too much management
authority to the State, stating ``hinging federal management targets on
the changing landscape of state decisions is an improper delegation of
management authority to the State.'' United Cook Inlet Drift Ass'n v.
Nat'l Marine Fisheries Serv., No. 3:21-cv-00255 at *28 (D. Alaska, June
21, 2022). In developing amendment 16, NMFS took a different approach.
For the first time since Alaska Statehood, there will be two salmon
fishery management jurisdictions in Cook Inlet. To avoid relying on the
State to achieve any Federal management targets under amendment 16,
NMFS has established OY for the Cook Inlet EEZ fishery and developed a
harvest specifications process that will achieve that OY on a
continuing basis while preventing overfishing of any of the salmon
stocks of varying abundance that co-occur in the EEZ.
Comment 11: Amendment 16 addresses the complexities of a mixed
stock fishery, with the added burden of separate adjacent
jurisdictional authorities. The proposed rule addresses MSY and OY, the
jurisdictional issues, and notes reliance on the State's scientific
knowledge and management authority but does not describe what triggers
fishing in the Cook Inlet EEZ Area. Because the State did not accept
delegated management and because NMFS lacks management expertise,
amendment 16 implements Federal management that is not reliant on State
input. However, because the State frequently develops the best
scientific information available for Cook Inlet salmon stocks,
amendment 16 should be modified to provide that NMFS authorize EEZ
fishing only after receiving notice from the State that doing so will
not negatively impact the State's management goals and strategies.
Response: NMFS acknowledges the jurisdictional complexity related
to this action, and the State's expertise in salmon management. This
action is intended to establish a Federal salmon management framework
that is not dependent on the State and has the flexibility to adapt to
changing conditions. The annual status determination criteria, harvest
specifications, and inseason management will be dependent on the best
scientific information available and the circumstances present in each
fishing year.
NMFS expects that it will develop management expertise and
strengthen cooperative relationships with various Agency partners
related to management of the Cook Inlet EEZ Area over time. NMFS
acknowledges that the mixed stock nature of and status of weaker salmon
stocks within the fishery can make it difficult to harvest all of the
surplus yield for all component stocks and that the interaction between
stocks must also factor into the definition of OY.
NMFS disagrees that the FMP should include language requiring
approval from the State prior to opening salmon fishing in the Cook
Inlet EEZ Area. Consistent with the direction of the District Court,
NMFS has implemented management measures including a fishing season,
fishing periods, and TACs to ensure that OY can be achieved without
relying on the State.
Comment 12: Under the State's management and based on the State's
preliminary numbers, the overescapement of sockeye in just two rivers
in Upper Cook Inlet exceeded the total commercial harvest of sockeye
for the entirety of Upper Cook Inlet and likely exceeded the escapement
necessary for all other rivers in Cook Inlet. According to NMFS's own
scientific information included in its analysis, overescapement is
problematic because it results in ``foregone yield in the current''
year and ``may be expected to result in reduction in future
recruitment,'' (i.e., reduction in long-term yield). To further put
these numbers in perspective, overescapement of sockeye in the Kenai
and Kasilof in 2023 was more than NMFS's OY range--approximately
291,631 to 1,551,464--for the entire Cook Inlet EEZ salmon fishery for
all species of salmon in Upper Cook Inlet. There is no discussion in
proposed amendment 16 of how NMFS's management measures for the Cook
Inlet EEZ salmon fishery will address and prevent rampant
overescapement by the State and the resulting unutilized waste to
ensure compliance with National Standard 1. Amendment 16 focuses only
on the concept of avoiding overfishing, without making any meaningful
effort to simultaneously prevent drastic underfishing by optimizing
yield.
Response: NMFS acknowledges that Kenai and Kasilof sockeye salmon
stocks have exceeded escapement goals in recent years, resulting in
foregone yield. As described in the preamble to the proposed rule,
salmon fishing in the Cook Inlet EEZ necessarily targets mixed stocks
of salmon. Conservation measures to prevent overfishing on less
abundant co-occurring salmon stocks are a primary driver of this
foregone yield as they limit a complete harvest of the most abundant
sockeye salmon stocks to prevent overfishing on less abundant salmon
stocks. As referenced within the 2024 SAFE report, which was reviewed
by the SSC, during recent years when Kenai and Kasilof river sockeye
salmon escapement goals were exceeded, some sockeye, coho, and Chinook
salmon escapement goals in Cook Inlet were not achieved at the status
quo level of salmon harvest; thereby highlighting the difficulty of
managing mixed stock fisheries to enable the harvest of potential yield
while also achieving conservation objectives. Management measures that
are required to prevent overfishing on all stocks are consistent with
the Magnuson-Stevens Act.
As described in the response to Comments 18, 25, and 55, Cook Inlet
is a mixed stock fishery within which there are weak stocks (i.e.,
stocks of relatively low abundance). This situation requires management
decisions that can result in overescapement of abundant stocks, such as
Kenai and Kasilof sockeye salmon. Providing for greater harvest of the
more abundant stocks in the EEZ would create a significant risk of not
meeting escapement goals for less abundant stocks and reducing or
eliminating the harvestable surplus of these stocks available to all
other salmon users. As noted above, NMFS has evaluated historical EEZ
harvest levels and found that harvest in the EEZ could not be increased
to fully harvest surplus Kenai and Kasilof salmon without causing
serious impacts to other salmon harvesters and major conservation
problems for other stocks. Whether management in State waters could be
modified to increase harvest of these stocks closer to their natal
streams without increasing pressure on the stocks of lower abundance in
the EEZ is outside the scope of this action, as NMFS has no
jurisdiction over State waters (as described in the response to Comment
10). The potential for overescapement to reduce future yields is
addressed in the response to Comment 18.
The Magnuson-Stevens Act has no prohibition against foregone
harvest, and in fact suggests foregone harvest is necessary when
additional harvest of an abundant stock would also result in bycatch of
species for which there is a conservation concern. In contrast, the
[[Page 34730]]
Magnuson-Stevens Act explicitly mandates that NMFS prevent overfishing.
Therefore, in defining OY for a mixed stock fishery, NMFS cannot look
at the strongest stocks in isolation. Here, OY is appropriately limited
to EEZ waters and defined so as to identify the amount of cumulative
harvest of all co-occurring EEZ stocks that provides the greatest net
benefit to the Nation while preventing overfishing. This is consistent
with NMFS's approach to salmon management on the West Coast where
``weak stock'' management is required to avoid exceeding limits for the
stocks with the most constraining limits. Each year when setting
harvest specifications, NMFS will evaluate the maximum potential
harvest available in the Cook Inlet EEZ Area and will work to provide
harvest opportunities to the extent possible, subject to the
constraints of scientific and management uncertainty. As the
information available to NMFS to manage salmon fishing in the Cook
Inlet EEZ Area improves through implementation of this new Federal
fishery management regime, it is possible that harvest levels could
increase.
The State's management decisions prior to NMFS implementing
amendment 16 regarding allocations among fishery sectors under State
jurisdiction are State decisions that are outside the scope of this
action.
Comment 13: This definition of OY is inconsistent with a 2018 NMFS
legal memorandum describing that OY should not be subdivided between
State and Federal waters.
Response: NMFS disagrees that amendment 16's definition of OY is
inconsistent with the 2018 NMFS legal memorandum filed in UCIDA v.
NMFS. The relevant portion of the legal memorandum stated, ``because
the fisheries take place in the EEZ and State waters without formal
recognition of the boundary between these two areas, the OY should not
and cannot be subdivided into separate parts for the EEZ and State
waters.'' At that time, management of Cook Inlet had never been divided
into separate State and Federal management regimes under the FMP. As
such, it was assumed that continued State management over the drift
gillnet fishery throughout both Federal and State waters would continue
through delegation under Magnuson-Stevens Act section 306(a).
Delegation of certain Federal management authorities to the State would
have maintained a single fishery that could operate without specific
regard for the EEZ boundary, but the State declined delegation.
Therefore, under amendment 16, which will create separate Federal and
State fisheries, it is appropriate to define OY for the specific
fishery under NMFS's jurisdiction--the Cook Inlet EEZ salmon fishery.
Comment 14: If NMFS could acknowledge that achieving OY/MSY
escapement goals should be the driving factor in developing its FMP,
then much of the complication built into amendment 16 would go away.
Response: NMFS acknowledges that an FMP must contain conservation
and management measures, including ACLs and accountability measures, to
achieve OY on a continuing basis and provisions for information
collection that are designed to determine the degree to which OY is
achieved. As stated above, here OY is defined for the fishery--which
currently includes seven stocks or stock complexes of varying
abundance--and accounts for the mixed stock nature of the salmon
fishery in the EEZ and the needs of multiple user groups in identifying
the harvest levels that will produce the greatest net benefit to the
Nation across a variety of run sizes. The FMP's management measures are
explicitly designed to achieve OY on a continuing basis while
preventing overfishing, consistent with National Standard 1.
NMFS does not agree that achieving MSY or MSY escapement goals are
its mandates. MSY is not a management target, as described above, and
MSY identifies the maximum sustainable harvest level an individual
stock could theoretically support if it was possible to target that
stock in isolation and without uncertainty. OY is prescribed on the
basis of MSY, as reduced by any relevant economic, social, or
ecological factors. Here, for Tier 1 and 2 salmon stocks, MSY in the
Cook Inlet EEZ represents all salmon in excess of the stock's
escapement goal in a given year. For Tier 3 stocks, which have no
reliable estimates of escapement, maximum catch over a recent range of
years that are representative of current biological and environmental
conditions is used as a proxy for MSY. But because it is not possible
to target individual stocks of salmon in the EEZ, it is not possible to
design conservation and management measures intended to fully harvest
MSY for each stock, as such harvest levels would result in overfishing
of the least abundant stocks. Instead, OY is defined for the fishery on
the basis of MSY--in that it aims to achieve as much surplus yield for
each stock as possible--but is reduced from MSY to account for
interactions between stocks (ecological factors) and identify the
harvest levels that will continue to support multiple active fishery
sectors without resulting in any one stock routinely missing its
escapement goal (i.e., likely overfishing) or any user group losing
access to the resource (economic factors). Fully harvesting MSY for
Kenai late run sockeye in the EEZ, for example, could decimate co-
occurring populations of salmon bound for Northern Cook Inlet,
completely eliminating fishing opportunities for other users. Such an
outcome would benefit one user group to the exclusion of all others and
thus would not produce the greatest net benefit to the Nation. Here,
NMFS has defined OY by carefully considering net benefits, the
competing demands of the numerous stakeholders and tribes who rely on
Cook Inlet salmon stocks, and the fundamental characteristic of co-
occurring, mixed stocks in the Cook Inlet EEZ. NMFS concludes the
management measures in this final rule will achieve OY as defined in
amendment 16 on a continuing basis.
Comment 15: Federal oversight of this fishery is a must to obtain
maximum harvest and sustainable yield.
Response: The Magnuson-Stevens Act mandates that Federal fishery
management measures shall prevent overfishing while achieving OY, which
is different from achieving maximum harvest or MSY. To the degree that
the commenter is suggesting that Federal management will result in
harvests equal to MSY, NMFS disagrees. To the contrary, many stocks of
fish in the EEZ are harvested at levels well below their MSY because of
the complex interactions between stocks; achieving MSY for certain
stocks would result in overfishing of other stocks, which would be
inconsistent with the first mandate of National Standard 1. Instead,
Federal fishery management measures must achieve OY on a continuing
basis. OY is defined as the amount of fish that:
(1) Will provide the greatest overall benefit to the Nation,
particularly with respect to food production and recreational
opportunities, and taking into account the protection of marine
ecosystems;
(2) Is prescribed as such on the basis of the maximum sustainable
yield from the fishery, as reduced by any relevant economic, social, or
ecological factor; and
(3) In the case of an overfished fishery, provides for rebuilding
to a level consistent with producing the maximum sustainable yield in
such fishery (16 U.S.C. 1802(33)).
Comment 16: Using historical catch data from 1999-2021 is incorrect
as a proxy for MSY and OY. This period begins after the State increased
[[Page 34731]]
escapement levels, resulting in large overescapements of sockeye in the
Kenai and Kasilof Rivers and under-harvest of coho, pink and chum
salmon. Because the State has not been managing the fishery on the
basis of MSY, this historical catch data has no relationship with MSY.
This continues poor State management practices in Federal management.
NMFS should include harvest data from the 1980s.
Response: NMFS disagrees. To start, historical catch is not used as
a basis for establishing MSY in this action for any stocks or stock
complexes with escapement goals or estimates of total run size (Tier 1
and Tier 2 stocks). Rather, MSY represents the maximum potential
harvest of a run in excess of the spawning escapement goal. The annual
SAFE reports will review the best scientific information available
regarding escapement goals and estimated run sizes. For Tier 3 stocks
with no data on run size or total escapement, maximum catch over a
recent range of years that is representative of current conditions is
used as a proxy for MSY because it represents the best scientific
information available to estimate MSY. In prescribing OY on the basis
of MSY, NMFS used the best scientific information available to identify
the range of harvest levels in the EEZ that will provide the greatest
net benefit to the Nation by ensuring all stocks harvested in the EEZ
can meet their escapement goals and the greatest number and diversity
of stakeholders and fishery sectors will retain access to the resource.
In other words, NMFS defined OY as the harvest levels that are expected
to capture as much yield in excess of escapement goals as possible in
the EEZ without any individual stock routinely not achieving these
escapement goals and risking overfishing, thereby maintaining a
harvestable surplus for all other salmon users.
The best scientific information available regarding the appropriate
harvest levels in this mixed stock fishery are currently estimates of
historic catch in years of high and low abundance across stocks from
1999-2021. As explained in the Analysis, the 1999-2021 time period was
chosen due to the advent of the current abundance-based approach to
management of salmon in Upper Cook Inlet. In addition, this time series
represents the recent range of salmon productivity conditions that are
representative of reasonably foreseeable future conditions, reflects a
range of time when management measures both increased and decreased
fishing opportunity in EEZ waters, and captures a range of different
social and economic conditions within fishing communities. Furthermore,
this period also reflects the time for which high quality and
comparable data for nearly all fisheries and fishing communities
throughout Cook Inlet are available. The OY range considers but does
not include the 1980s because there was a different ecological regime
in place in the North Pacific (highly productive for salmon stocks),
seafood markets for salmon were significantly different (strong Asian
demand and less competition from farmed salmon), and the regional
population was significantly smaller. These factors all influence
NMFS's consideration of the greatest net benefit to the Nation,
including consideration of food production and recreational
opportunities and taking into account the protection of marine
ecosystems.
The harvest levels from 1999-2021 have resulted in numerous viable
fisheries while preventing stocks from becoming overfished. While it
may be possible to develop better information in the future as NMFS
collects more data specific to the EEZ--and section 302(h)(5) of the
Magnuson-Steven Act requires the Council to review OY on a continuing
basis--at present, historic catch is the best scientific information
available. Therefore, ranges of catch in years of high and low salmon
abundance is an appropriate method to determine OY.
This action establishes a Federal management framework that
accommodates varying levels of harvest over time as the information
available to inform harvest specifications and both relative and
absolute abundances of salmon change each year. NMFS reviewed fishery
data dating back to 1966 when developing a definition for OY. Harvests
by the drift gillnet fleet, and all other salmon users in Cook Inlet,
have fluctuated dramatically over time based on both salmon abundance
cycles and management decisions. Ultimately, as explained above, NMFS
determined that the best scientific information available for
prescribing OY is currently the estimates of historic catch in years of
high and low abundance across stocks from 1999-2021.
Comment 17: The proposed calculation of MSY, OY, and TAC includes 3
years, 2018, 2020 and 2021, which were declared economic disasters by
the Secretary of Commerce. This data should be omitted from all
analyses of historic harvest.
Response: This action does not use historical catch data to define
MSY or to set TACs, as explained above.
For the reasons explained in response to Comment 16, the best
available science for developing OY includes historic catch data. Of
the 2018, 2020, and 2021 fishery disaster determinations referenced by
the commenter, only the 2020 disaster determination applied to the
drift gillnet fleet. The 2018 and 2021 determinations only applied to
the East Side set net fishery sector. The East Side set net fishery
does not operate in EEZ waters. Further, NMFS disagrees that disaster
and low harvest years should be omitted from consideration in defining
OY, as they represent part of the range of conditions experienced in
the fishery. In defining the lower bound of OY for the Cook Inlet EEZ
Area, the three lowest EEZ harvests are averaged together, and this
number identifies what optimum harvest levels might be in years when
low stock abundance reduces harvest opportunities.
It should be noted that OY is not an annual management target but
is a long-term objective. Harvests may fall above or below the OY range
in some years. Furthermore, OY may appropriately encompass very low
harvests when that is what is required to prevent overfishing on all
stocks. For example, in the GOA groundfish FMP, the lower bound of the
OY range is defined by the year with the absolute lowest fishery
harvest in the time series and in the BSAI King and Tanner Crab FMP,
the lower bound of the OY range is zero.
Comment 18: Multiple commenters expressed concern about
overescapement reducing future yields of Cook Inlet salmon stocks.
Commenters stated that underfishing (too little harvest) can jeopardize
the capacity of a salmon stock to produce MSY on a continuing basis by
allowing too many salmon to enter the stream to spawn and exceeding the
carrying capacity of the spawning and rearing habitat, thereby reducing
future runs. ADF&G data indicates all the salmon stocks in Cook Inlet
are underfished, and with such low exploitation rates, we cannot be
overfishing. The commenters stated that most salmon stocks in Cook
Inlet are underfished with returns that have exceeded escapement goals.
For example, Kenai and Kasilof River sockeye salmon have consistently
exceeded escapement goals, sometimes by over a million fish. This
action will continue or increase overescapement and result in
overcompensation. Management practices that jeopardize the long-term
health of the salmon resource reduce opportunities for harvesters and
processors and harm the economies of fishing communities.
Response: NMFS disagrees that all salmon stocks in Cook Inlet are
[[Page 34732]]
underfished, that overfishing cannot occur in Cook Inlet, and that
amendment 16 will jeopardize the long-term health of the salmon
resource if the stocks of highest abundance exceed their escapement
goals when harvest restrictions are required to protect stocks of lower
abundance. As discussed in the 2024 SAFE report, escapements for some
stocks of sockeye, coho, and Chinook salmon have been below spawning
escapement goals during recent years when Kenai and Kasilof sockeye
salmon have exceeded the upper bound of their escapement goals.
As discussed in section 3.1 of the Analysis, the need to conserve
weaker stocks by reducing fishing effort sometimes results in foregone
yield from more productive stocks. For salmon, this can result in
escapement goals being exceeded, which is sometimes referred to as
overescapement. NMFS has evaluated the best available science on
overescapement. Appendix 14 of the Analysis is an independent analysis
of the potential for overcompensation (reduced yield as a result of
overescapement) in Kenai and Kasilof river sockeye salmon stocks. The
SSC reviewed this analysis, which found that ADF&G's escapement goals
were established within the range expected to produce MSY for those
stocks, that ADF&G's point estimates of MSY were accurate, and that
there is limited evidence for overcompensation across the observed
range of escapements for Kenai and Kasilof sockeye salmon. Thus, while
instances of overescapement will result in foregone yield in the
current year, existing spawner-recruitment information does not
indicate that overescapement has resulted in substantial reductions in
recruitment and yield for the primary stocks harvested by the drift
gillnet fleet in Cook Inlet. In other words, though the Kenai and
Kasilof sockeye salmon stocks have recently exceeded their escapement
goals, this has not resulted in a conservation problem for those stocks
and available data does not indicate that overescapement has resulted
in a reduction in future yields. NMFS concludes that increased fishing
effort in the EEZ to fully harvest the available yield for Kenai and
Kasilof sockeye salmon would result in serious conservation concerns
for stocks of lower abundance, which would fail to achieve their
escapement goals.
For Cook Inlet salmon stocks without escapement goals, information
is not available to analyze overescapement or its potential impacts on
future yields. In the absence of specific stock information,
conservative management using suitable proxies while following the
precautionary principle is consistent with the National Standard 1
guidelines for dealing with data-poor stocks (Sec. 600.310(e)(1)(v)(B)
and (h)(2)). The guidelines provide flexibility in setting MSY and
other reference points based on insufficient data and in consideration
of stocks with unusual life history characteristics, including salmon.
The risk of overfishing as a result of harvest rates that are too high
is much greater than the uncertain and speculative risk of underharvest
or overescapement. Therefore, precautionary management is appropriate
for data-poor fish stocks.
From a practical perspective, it is not possible to manage the
mixed stock salmon fishery in the Cook Inlet EEZ Area by harvesting
surplus yield on all stocks because the composition, abundance, and
productivity of stocks and species in the fishery vary substantially.
Overescapement occurs in Cook Inlet, as noted in section 3.1 of the
Analysis. Overescapement usually results from (1) a lack of fishing
effort, (2) unexpectedly large salmon runs, or (3) management or
economic constraints on the fishery. In this instance, management must
constrain harvest of the largest, most productive salmon stocks to
protect less abundant salmon stocks and species.
Comment 19: The Exxon Valdez litigation had documented damage to
the Kenai River due to overescapement and the Exxon Valdez Oil Spill
Trustees Council funded ADF&G research on damage from Kenai Sockeye
overescapement and plaintiffs' compensation in part was for damage to
future runs caused by overescapement. Now the State is managing the
sockeye fishery in a manner that results in substantial overescapement,
similar to what occurred after the oil spill.
Response: The response to Comment 18 explains that the best
scientific information available indicates that large escapements of
sockeye salmon to the Kenai River have not resulted in reduced future
yields and are not a conservation concern compared to the clear risks
of overfishing and/or stocks failing to meet the lower bound of
escapement goals. The claims and damages paid to plaintiffs in the
decades of litigation arising from the Exxon Valdez oil spill are
beyond the scope of this action.
Comment 20: The result of the overescapement on the Kenai and
Kasilof rivers caused by commercial fishery restrictions wastes a food
resource that belongs to the whole nation (see the Supreme Court's case
of Hughes v. Oklahoma which reversed Greer v. Connecticut). It is in
the whole Nation's interest as to what happens to salmon in Alaska.
When Alaska became a state, the State compact with Congress was for the
State to manage its fish and wildlife in the national interest. The
State created ADF&G to manage fish and game in the national interest.
It is no longer doing that. This is the reason for the involvement of
NMFS and the Department of Commerce.
Response: The U.S. Supreme Court in Hughes v. Oklahoma, 441 U.S.
322, 338 (1979), held that a State could not prohibit transporting fish
out of state for sale once caught. Hughes v. Oklahoma is not relevant
to this action.
NMFS has determined that this action would achieve OY for the Cook
Inlet EEZ Area and, in doing so, will result in the greatest overall
net benefit to the Nation. The National Standard 1 guidelines provide
that OY means the amount of fish that will provide the greatest overall
benefit to the Nation, particularly with respect to food production and
recreational opportunities, and taking into account the protection of
marine ecosystems. This means NMFS must look at the impacts of its
harvest management on all salmon stocks and stakeholders and cannot
look at the interests of the drift gillnet fleet alone.
As noted in the preamble to the proposed rule, amendment 16 defines
OY as the average range of target EEZ harvest across all species that
maximizes fishing opportunities while preventing overfishing on any one
stock. This OY range provides the greatest overall net benefits to the
Nation because it ensures sustainable stock levels throughout the
ecosystem, preserves multiple viable commercial fishery sectors for
continued food production, and maintains a viable recreational fishing
sector that attracts participants from throughout the Nation.
This OY range is expected to result in drift gillnet harvests near
historic levels, protect less abundant salmon stocks transiting to
Northern Cook Inlet, and ensure other commercial and non-commercial
stakeholders in Cook Inlet continue to have access to salmon resources.
Any management plan designed only to prevent overescapement in the
Kenai and Kasilof rivers by increasing EEZ harvest would upset this
balance, preempting other users, and likely causing stocks of lower
abundance--particularly in Northern Cook Inlet--to more regularly miss
their escapement goals, ultimately resulting in overfishing.
[[Page 34733]]
Comment 21: Use the flexibility within the National Standard 1
guidelines (Sec. 600.310(h)(2)) to adopt an escapement-based inseason
management methodology similar to the State. If the State is allowing
too much harvest in its jurisdiction, it will be reflected in too low
escapement numbers, and Federal managers will know to restrict fishing.
Likewise, if the State is not providing for enough harvest, daily
escapement numbers will indicate a higher than acceptable final
escapement, and Federal managers will know to allow more fishing time.
One commenter noted that an alternative approach is needed for salmon
because of the following: (1) unlike groundfish stocks, salmon
reproduce only once; (2) the harvestable surplus is entirely new
recruits and the catch comprises almost exclusively mature salmon; (3)
productivity of a specific year class cannot be improved by limiting
harvest in subsequent years; (4) foregone harvest cannot be recaptured
in future years; and (5) abundance cannot be estimated effectively in
advance. Therefore, inseason estimates of abundance using
contemporaneous data, with appropriate management actions taken to
assure escapement and optimum production in future years, is the most
effective way to avoid the risk of overfishing.
Response: As set forth under section 301 of the Magnuson Stevens
Act, National Standard 1 provides that conservation and management
measures shall prevent overfishing while achieving, on a continuing
basis, the optimum yield from each fishery for the United States
fishing industry. Section 303(a)(15) of the Magnuson Stevens Act
requires that each FMP establish mechanisms for specifying ACLs to
prevent overfishing and include accountability measures to prevent ACLs
from being exceeded and to correct overages of the ACL if they do
occur. The National Standard 1 guidelines at Sec. 600.310(h)(2)
contemplate limited circumstances in which alternative approaches to
establishing ACLs may be appropriate, and specifically cite Pacific
salmon as an example of stocks that may require an alternative approach
to ACLs. However, while Sec. 600.310(h)(2) provides NMFS some
flexibility to consider alternative means of establishing ACL
mechanisms and accountability measures in FMPs, the National Standard 1
guidelines do not provide discretion to consider alternative means of
establishing other reference points, like OFL or ABC. And any
alternative approach to establishing ACLs must be consistent with the
Magnuson-Stevens Act.
The primary function of status determination criteria, ACLs, and
related requirements is to ensure that a scientifically-based approach
is used for controlling catch to maintain stock abundance at the level
necessary to prevent overfishing, ensure no stocks become overfished,
and achieve OY in the fishery. Therefore, an alternative approach that
is consistent with the Magnuson-Stevens Act must document how the
alternative management measures would limit catch and explain how such
measures would rely on the best scientific information available.
When the Council was developing the alternatives for analysis, the
Council and NMFS considered using the State's salmon escapement goal
management as an alternative approach for satisfying the ACL
requirements of the Magnuson-Stevens Act under delegated management to
the State (Alternative 2). Under amendment 12, the Council recommended
this alternative approach for ACLs in the East Area. Escapement goals
are specified annually, in terms of numbers of fish. The biology of
salmon is such that escapement is the point in the species life history
best suited for routine assessment and long-term monitoring. Using
spawning escapement goals is consistent with the long-standing practice
of using spawning escapement to assess the status of salmon stocks.
Under this alternative approach (not adopted in amendment 16), the
mechanisms for specifying ACLs salmon stocks would be the State's
scientifically-based management measures used to determine stock status
and control catch to achieve the number of spawners necessary to
produce MSY. The State's salmon management program is based on
scientifically defensible escapement goals and inseason management
measures to prevent overfishing. Accountability measures would include
the State's inseason management measures and the escapement goal
setting process that incorporates the best scientific information
available on stock abundance.
Using the State's inseason management approach as an alternative
approach to establishing ACLs is not possible under Federal management
of a new fishery in the EEZ that will be managed separately from
fishing in State waters. NMFS currently has no infrastructure for
collecting escapement information in Cook Inlet and there is no
guarantee NMFS managers would have access to information collected by
the State quickly enough to make real time management decisions.
Additionally, escapement information is not available from any source
for many salmon stocks in Cook Inlet. The responses to Comments 23 and
28 provide additional discussion of the procedural challenges of
implementing escapement-based inseason management in this situation.
For management of the Cook Inlet EEZ Area as an entirely separate
jurisdiction, using escapement-based inseason management as an
alternative approach for ACLs may have additional limitations. Because
there is a lag of multiple days (or longer for the Northern District
salmon stocks currently with the greatest conservation risks) between
encountering EEZ fisheries and being counted at escapement monitoring
stations, that data may not be timely for the current management
situation. This lag between receipt of data and action can have huge
consequences in a fishery where a single opening can harvest well over
300,000 salmon per day. Further, just because one stock has reached an
escapement goal and can sustain additional harvest that does not mean
that all of the other stocks, which are highly mixed in EEZ waters, can
support additional harvest. This issue is compounded by fishing in EEZ
waters occurring before all other users. Basing management solely on
escapement would make it more difficult to ensure there was at least
some harvestable surplus available to all salmon users in Cook Inlet
across all jurisdictions when cooperation is not guaranteed through
established agreements.
During the development of this action--first at the Council, then
as a Secretarial FMP amendment after the Council failed to recommend
any management measures--no one identified any alternative means of
specifying ACLs for the Cook Inlet EEZ Area that would be consistent
with the Magnuson-Stevens Act, rely on the best scientific information
available, and limit catch to ensure no overfishing occurred.
Therefore, amendment 16 uses the default ACL approach described in the
National Standard 1 guidelines--establishing preseason harvest limits
based on the best scientific information available at the time stock
assessments are drafted and harvest specifications are recommended.
This is similar to how ACLs are set for salmon along the US West Coast
and how the 2019 Pacific Salmon Treaty Agreement establishes pre-season
limits on Chinook harvest under the Treaty.
Comment 22: The State, several regional sportfishing organizations,
and
[[Page 34734]]
stakeholders in the Northern District believe amendment 16 will disrupt
conservation and management benefits realized by the State's management
plans, which these commenters have found to successfully balance the
complexity and challenges of managing multiple user groups in a highly
populated area. They emphasize that the State's management plans were
developed by the BOF to ensure long-term sustainability of both strong
and weak salmon stocks, optimize yields and opportunities of the
diverse fisheries, and allocate benefits among user groups. They feel
this action will result in overfishing of weak salmon stocks, produce
suboptimum yields, and confound the State's effective in-season
management. This is not consistent with the Magnuson-Stevens Act or
National Standard 1.
Response: NMFS recognizes the complex and challenging nature of
Cook Inlet salmon fisheries. NMFS disagrees that amendment 16 will
undermine the State's Central District Drift Gillnet Fishery Management
Plan, result in overfishing, or produce suboptimal yields.
As described in the preamble to the proposed rule, NMFS recognizes
that salmon harvest in the Cook Inlet EEZ occurs first and can impact
the amount of salmon available to upstream users and to meet spawning
escapement goals. In developing this final rule, NMFS considered the
management measures implemented by the BOF and worked to balance
competing interests and provide opportunity for all users of salmon
throughout Cook Inlet.
NMFS acknowledges that, in some years, this action may allow for
more days of drift gillnet fishing in the Cook Inlet EEZ Area relative
to previous State management plans. NMFS will use TACs that account for
uncertainty and harvest in other fisheries in order to prevent
overfishing on any less abundant salmon stocks transiting through the
Cook Inlet EEZ Area. As described in section 2.5.2.1 of the Analysis
and the response to Comment 25, TACs will account for stocks of lower
abundance and prevent overfishing on weak stocks. The TACs are expected
to result in total harvests fairly consistent with the status quo. NMFS
will have inseason management authority to adjust TACs and close or
reopen the fishery as needed to account for inseason conditions. NMFS
and the Council will use the best scientific information available and
work to improve salmon monitoring and assessment where possible/
practicable, and will coordinate with the State to the extent possible.
Further, as discussed in the section on changes from the proposed to
final rule, NMFS is reducing the number of open fishing periods from
two to one from July 16 to July 31 to directly respond to the comments
from users in Northern Cook Inlet who said they depend on the
conservation corridor established under State management.
NMFS expects that this final rule will continue to provide for a
harvestable surplus for all Upper Cook Inlet salmon fishery sectors in
both State and Federal waters. NMFS anticipates that under this final
rule all Cook Inlet salmon fisheries will remain viable and produce
economic benefits commensurate with the status quo.
Status Determination Criteria and Annual Catch Limits
Comment 23: Many commenters raised concerns about using TACs for
salmon harvest in the EEZ, including the following perspectives.
Use of a TAC established on preseason projections will result in
inappropriate catch. While uncertainty may be accounted for when
setting ABC and OFL, it lacks the benefit of inseason information on
run strength, weak stocks, harvests, and other important factors. Cook
Inlet salmon run sizes and timing are variable and unpredictable,
especially in recent years. Establishing a TAC increases the likelihood
of either overfishing or underfishing and reduces the likelihood of
remaining within the escapement goal range for those stocks with goals.
Further, if there are deviations from forecasted run size, procedural
constraints on Federal management may exacerbate the resulting
problems. These issues combined could jeopardize sustainability,
especially for weak stocks, and could result in overfishing of weak
stocks.
Commenters from the drift gillnet fleet emphasized that forecasts
will be inaccurate, management objectives will not be met, harvest will
be unnecessarily reduced, MSY and OY will not be achieved, and this
action will cause adverse economic impacts.
Other commenters voiced concerns that a TAC would not be
conservative enough given that this action sets TACs for a first-in-
line fishery, which would require the State to reduce State water
fisheries harvest if the pre-season forecasts are not realized.
Commenters from other commercial and recreational salmon fishery
sectors in Upper Cook Inlet, as well as associated communities, were
significantly concerned that TACs would not be precautionary enough and
EEZ harvests would reduce or eliminate the harvestable surplus
available to other users. Some commenters cited unpredictable
escapement data that would require unexpected fishery closures.
Response: Under section 303(a)(15) of the Magnuson-Stevens Act, the
FMP must include a mechanism for specifying ACLs at a level that
overfishing does not occur in the fishery, including measures to ensure
accountability. NMFS is therefore required to have ACLs and management
measures to implement them, and amendment 16 includes these required
elements. TACs (i.e., preseason catch limits) are established to ensure
fishery harvests remain below ACLs. Because salmon of the same species
originate from separate stocks but cannot be visually distinguished, in
amendment 16, TACs are set at the species level based on the cumulative
estimated contribution by stock, at least until inseason genetic
information becomes available. There is uncertainty inherent to
forecast-based catch limits. In establishing TACs, NMFS will take into
account management uncertainty and public comment, just as NMFS and the
SSC will consider scientific uncertainty in setting OFL and ABC (and
therefore ACL since ACL equals ABC) each year. OFL and ABC are
specified for each stock or stock complex. TACs are established for
species rather than stocks or stock complexes because inseason it is
not currently possible to differentiate among stocks of the same
species. TACs for each species are set based on the aggregate ABC for
each component stock and stock complex and account for the assumed
contribution of each stock or stock complex to total catch to ensure
ABC is not exceeded for any one component stock. NMFS will monitor the
fishery daily and use inseason management measures and adjust the TAC,
if practicable, to ensure that catch amounts are appropriate for the
realized run strength. And NMFS expects that TACs set for the Cook
Inlet EEZ will be suitably precautionary to avoid overfishing.
Establishing TACs is consistent with the NMFS's management approach
for salmon stocks in ocean fisheries on the West Coast with an ACL
requirement (e.g., stocks that are not subject to a tribal/
international treaty or ESA exception). The Pacific Salmon Treaty also
establishes pre-season catch limits for Chinook salmon covered by the
Treaty. NMFS considered alternative approaches to establishing ACLs as
described in the response to Comment 21.
NMFS will consider all available information about Cook Inlet
salmon
[[Page 34735]]
run strength and coordinate with the State to the extent practicable
when making management decisions for the Cook Inlet EEZ Area. However,
this action establishes Federal reference points and harvest
specifications for the Federal fishery, as required by the Magnuson-
Stevens Act, which are different from existing State management
measures.
NMFS acknowledges that the ACL requirement and additional Federal
notice requirements--mandated by the Magnuson-Stevens Act and the APA--
are less flexible in adjusting fishing opportunity based on inseason
information about run size when compared to managing by monitoring
escapement goals and exercising emergency order authority pursuant to
State law, as under State management. This is described in section
2.5.2.6 of the Analysis. NMFS also acknowledges that fishing in the
Cook Inlet EEZ Area takes place before all other salmon fisheries in
upper Cook Inlet and that it can impact salmon escapement for each
stock as well as the harvestable surplus available to all other
subsequent salmon users. NMFS acknowledges the uncertainty inherent to
forecast-based catch limits. However, NMFS designed the harvest
specification process and management framework implemented by this
action to account for the inherent uncertainty in preseason estimates
and the need for inseason management, as well as the mixed-stock,
first-in-line nature of the Cook Inlet EEZ Area fishery, consistent
with the Magnuson-Stevens Act and the APA.
Comment 24: Appropriate harvest rates are not considered when
determining what should be harvested in the Cook Inlet EEZ Area. The
2002 ADF&G mark-recapture population estimate study (Regional
Information Report 2A03-20, published 2003) on coho, pinks, and chums
found that the commercial fishery harvest rates on coho were about 10
percent, pinks were around 2 percent, and chums were around 6 percent.
These harvest rates were the results of State management policies that
were in effect at that time. To further skew the harvest rates since
2002, when the study was done, the commercial fishery was even more
restricted by State salmon management plans that continue to fail to
meet the requirements of Magnuson-Stevens Act. All harvest rates should
be based on 81 percent overfishing exploitation rate and a 65 percent
MSY exploitation rate. MSY exploitation rates should be 63 percent for
coho, 53 percent for pinks, and 56 percent for chums to achieve MSY on
these stocks over the long term.
Response: Harvest rates (exploitation rates) could not be
considered for the Federal management of stocks of pink, chum, and coho
salmon in Upper Cook Inlet because there are not sufficient data
available to estimate such harvest rates. The mark-recapture studies
cited by the commenter are now more than 20 years old, and salmon
populations are not stable over time. Rather, as cited in the Analysis
and the SAFE report, a variety of publications, including State of
Alaska escapement goal reports, annual management reports, and stock
assessments, indicate that Alaska's salmon populations experience
substantial year-to-year fluctuations in abundance over time.
Population estimates from a given year are not indicative of the
population abundance during other years. There are no contemporary
estimates of total run size or overall spawning escapement for stocks
of coho, pink, and chum salmon for all of Upper Cook Inlet, and
historical estimates are highly uncertain. As such, exploitation rates
have not been estimated during recent years and therefore, it is not
possible to precisely estimate MSY for these stocks based on current
assessment methods. Moreover, there are no estimates of population
abundance for these stocks to inform preseason harvests specifications.
NMFS will use the best available scientific information to inform
harvest specifications and management decisions for the Cook Inlet EEZ
Area.
Comment 25: Several commenters, including Alaska Native tribes in
the region, emphasized the importance of precautionary salmon
management and felt that amendment 16 was not suitably precautionary
given large potential harvests by the drift gillnet fleet, which
includes a mixture of strong and weak stocks.
One commenter noted that many Northern District salmon stocks lack
estimates of annual escapement, escapement goals, and numeric data
(historic or current). Cook Inlet salmon fisheries harvest mixed stocks
and need to be managed to account for this. Precautionary management
would help meet escapement goals. NMFS should fund genetic data
collection and more escapement monitoring.
Another commenter suggested setting conservative TACs for the first
6 years. One commenter generally suggested that management measures in
addition to TACs would be needed. Another commented stated that NMFS
must develop a plan for pre-season commercial fishing closures as well
as in-season commercial fishing closures based on in-season
escapements.
Response: NMFS acknowledges the importance of precautionary fishery
management and avoiding overfishing on all salmon stocks. Furthermore,
NMFS acknowledges that some Cook Inlet salmon stocks are highly
abundant and may support additional harvests while other salmon stocks
are a major conservation concern and can support little or no harvest.
Over time, NMFS will work to expand the scientific information
available to manage Cook Inlet salmon stocks. Amendment 16 includes
accountability measures, and NMFS can implement additional
accountability measures if needed to avoid exceeding ACLs.
NMFS must establish harvest specifications before fishing begins.
NMFS agrees that there is a need for precaution when there is
significant scientific or management uncertainty associated with salmon
management in Cook Inlet. Drift gillnet fishing in Cook Inlet harvests
mixed stocks of salmon. The best scientific information available will
be used to assess the status of each salmon stock in Cook Inlet and set
harvest limits each year. The harvest limits set for each species will
consider the proportional contribution of each salmon stock to total
catch, when known. Species-level TACs may also be reduced from combined
ACLs to protect weak stocks when there is uncertainty about catch
composition (a key type of management uncertainty). Furthermore, NMFS
will close commercial fishing for all salmon species in the Cook Inlet
EEZ when catch limits for one or more stocks are met or exceeded, or if
other information becomes available that indicates overfishing is
likely. This will help ensure that overfishing does not occur on any
one stock.
NMFS disagrees that the management framework established by this
action is not sufficiently precautionary. As described in the preamble
to the proposed rule, every year the Council's SSC will establish ABCs
for each Cook Inlet salmon stock, accounting for scientific uncertainty
by reducing ABC from OFL. TAC would then be set for each salmon species
to account for management uncertainty to ensure that total catch does
not exceed the ABC for any stock and may also include additional
reductions to account for social, economic, and/or ecological factors.
As noted in the changes from proposed to final rule section, this
action reduces the number of fishing periods per week in the Cook Inlet
EEZ Area to one opening per week from July 16-July 31 to allow salmon
stocks of lower abundance to migrate northward. To further address
mixed-stock conservation needs, drift gillnet fishing
[[Page 34736]]
in the Cook Inlet EEZ area will be closed after a TAC for a single
species is reached or would be exceeded by another opening because
drift gillnet gear catches all stocks present in the EEZ and the fleet
could not focus harvest on only those species for which there is
remaining TAC.
NMFS acknowledges that there is some uncertainty in estimated EEZ
harvests but recognizes it as the best scientific information
available. Forecasted salmon abundance and associated uncertainty will
be considered each year to set harvest specifications that are
appropriately precautionary. After implementation of this action, NMFS
will collect high quality data to determine total EEZ harvests.
For further explanation of NMFS's approach to management of this
mixed stock fishery, see the response to Comment 55.
Comment 26: The State cannot commit to adjusting the work schedule
and timing of Cook Inlet salmon management and science products to
accommodate the proposed Federal harvest specification process. Salmon
scales take time to read and age, data takes time to analyze, and
models take time to run and fact check. Expediting these processes
could result in errors. We already anticipate that this action will
increase the volume and complexity of information requests that ADF&G
receives from fishery participants, increasing staff workload.
Response: Nothing in this action requires the State to change the
timing of their reports, publications, or other work products. However,
as described in sections 4.7.3.2 and 4.8 of the Analysis, NMFS
acknowledges that this action will increase costs and burden to State
and Federal fishery management agencies. NMFS acknowledges the timing,
logistical challenges, and costs associated with fishery data
collection, analyses, and the timing requirements of the Federal
process for the SSC and Council to recommend harvest specifications and
for NMFS to implement them by publishing proposed and final harvest
specifications in the Federal Register.
NMFS and the Council will use the best scientific information
available at the time that harvest specifications must be developed or
other fishery management decisions made. This may include information
from the State or other sources, and NMFS will work with the State to
the extent practicable. NMFS, the Council, and the SSC will evaluate
the level of uncertainty in available data and information and adjust
harvest specifications and other management measures accordingly.
Comment 27: To establish a reliable TAC based on the proportional
contribution of each stock to this fishery, better data must first be
established including in-season genetics and escapement information for
Northern Cook Inlet salmon stocks. Test fisheries need to take place
where northern-bound fish are most easily differentiated from Kenai-
bound fish. Using averages of previous years to establish the TAC is no
substitute for timely in-season management. NMFS may want to support
the State's test fishery or establish another test fishery to monitor
salmon numbers, species, and stocks entering upper Cook Inlet. Timely
genetic analysis from test fisheries could provide better real-time
abundance information for management.
Response: NMFS acknowledges that there are incomplete genetics and
escapement data for Cook Inlet salmon stocks, as described in section
2.5.2.2 of the Analysis. However, NMFS will use the best scientific
information that is available, including information from test
fisheries and historical data on genetic stock composition to manage
salmon fishing in the Cook Inlet EEZ Area. Any uncertainties in the
available scientific information will be accounted for, and management
measures will be adjusted based on the level of precaution warranted.
As discussed in the response to Comment 28, NMFS will monitor the
fishery and make management decisions on a daily basis depending on
currently available information on realized salmon abundance.
NMFS will work to improve the level of information available to
manage the fishery and may consider other management tools including
Federal test fisheries and genetics sampling to address future
management needs.
Inseason Management
Comment 28: Daily management of the fishery must take place like
all other State salmon fisheries.
Response: NMFS will monitor catch from each Federal fishing day,
catch in other fisheries, and any other information available about
inseason salmon abundance to make management decisions for the Cook
Inlet EEZ Area on a daily basis. NMFS may close the fishery, reopen it,
or--potentially--adjust the TAC amounts to account for emerging
inseason conditions. However, unlike the State and as described in the
proposed rule, NMFS must comply with the APA when implementing any
fishery management decision. The need to comply with the APA's notice
requirements for all inseason actions, and the Magnuson-Stevens Act
requirement to establish ACLs, make it infeasible to implement an
escapement-based salmon management approach like that used by the
State.
Comment 29: Catch per unit effort (CPUE) should be used instead of
a TAC to manage salmon fishing in the Cook Inlet EEZ Area.
Response: NMFS disagrees that CPUE should be used to manage salmon
fishing in the Cook Inlet EEZ Area as CPUE data alone would be
insufficient to meet Federal Magnuson-Stevens Act and National
Standards requirements. CPUE data would provide managers with the
information about catch rates of salmon in the fishery, but not about
the specific stocks caught. Even with stock specific catch information,
CPUE data for salmon harvests may not correspond to overall run size or
numbers of fish necessary to meet spawning escapement goals. As
described in section 2.4.4 of the Analysis, methods that use CPUE
(e.g., catch per delivery) would likely not provide sufficient
information to judge whether catches had exceeded a level thought to
cause overfishing for a stock. NMFS does agree that CPUE can, under
some circumstances, provide useful inseason information for fishery
managers.
Comment 30: The proposed TAC does not discuss the criteria that
will be used to close the fishery. The only criterion that is presented
is a salmon harvest of 291,631. This single criterion of 291,631 salmon
does not meet Magnuson-Stevens Act and the National Standards
requirements.
Response: This final rule does not establish a TAC of 291,631
salmon. NMFS will establish TACs in a separate proposed and final
harvest specifications process.
The preamble to the proposed rule for this action comprehensively
describe how TACs for each salmon species would be established
according to the process laid out in the Harvest Specifications and
Annual Processes section, while the criteria for closure are described
in the Inseason Management section. This action establishes the lower
bound of the OY range at 291,631 salmon. The OY range is not used to
establish harvest specifications or close salmon fishing. The OY range
is a long-term average amount of desired yield from the fishery, not an
annual management target, and thus 291,631 represents the lower bound
of the desired long-term average yield from the fishery. As described
in the response to Comment 10, the OY range specified by this action is
consistent with the
[[Page 34737]]
Magnuson-Stevens Act and the National Standards.
Cook Inlet EEZ Commercial Salmon Fishing Management Measures
Comment 31: Several commenters objected to the prohibition on drift
gillnet fishing in State and Federal waters on the same calendar day.
They indicated this will be inefficient, have adverse economic impacts,
decrease flexibility to harvest salmon as migration paths and run
timing vary, and be inconsistent with National Standard 6. Another
commenter noted that there is not a similar prohibition on recreational
fishing in both State and Federal waters on the same day. Some
commenters also suggested these requirements are intended to be
punitive against members of the drift gillnet fleet.
Response: This final rule provides that it is unlawful for
commercial fishery sector participants to:
<bullet> Set drift gillnet gear within, or allow any portion of
drift gillnet gear to enter, State waters on the same calendar day that
drift gillnet gear is also deployed in the Cook Inlet EEZ Area while
commercial fishing for salmon in the Cook Inlet EEZ Area (Sec.
679.117(b)(1)(v));
<bullet> Use a vessel named, or required to be named, on an SFFP to
fish for salmon in the Cook Inlet EEZ Area if that vessel fishes for
salmon in Alaska State waters on the same calendar day (Sec.
679.117(b)(1)(vii));
<bullet> Possess salmon, harvested in Alaska State waters, on board
a vessel commercial fishing for salmon in the Cook Inlet EEZ Area or to
have salmon on board a vessel at the time a fishing trip commences in
the Cook Inlet EEZ Area (Sec. 679.117(b)(1)(viii) and (ix)); and
<bullet> Land salmon harvested in Alaska State waters concurrently
with salmon harvested commercially in the Cook Inlet EEZ Area'' (Sec.
679.117(b)(1)(xii)).
As noted in the preamble to the proposed rule (Other Commercial
Fishery Management Measures and Prohibitions section), NMFS has
determined that there is a need to restrict vessels from fishing in
both State and Federal waters during the same calendar day. The Cook
Inlet EEZ Area is managed separately from adjacent waters managed by
the State. NMFS must be able to accurately account for harvest in the
Cook Inlet EEZ to avoid exceeding the Federal TAC, prevent overfishing,
and accurately manage to the established Federal reference points, as
required by the Magnuson-Stevens Act, which NMFS would be less able to
do if catches from State and Federal waters were mixed on a vessel
during a single fishing trip.
If vessels could fish in both State and Federal waters on the same
calendar day, landings could contain a mix of salmon harvested in both
the State and Federal fisheries. Some method to attribute a
proportional amount of catch to Federal waters would be needed. This
would embed assumptions about the correct proportions and thus would
substantially increase uncertainty for Federal managers and would
likely require significantly more conservative management decisions for
the Cook Inlet EEZ Area. This could also create an incentive for
fishermen to over-report State waters catch to keep the Cook Inlet EEZ
open to commercial salmon fishing longer, which would necessitate
additional monitoring, recordkeeping, and reporting measures. In short,
NMFS could not accurately monitor EEZ harvests and ensure the fishery
complies with all Magnuson-Stevens Act requirements if vessels could
move between State and Federal waters on the same day and land fish
caught in both jurisdictions.
As described in the response to Comment 37, these prohibitions do
allow vessels to choose whether to fish in State or Federal waters on
each calendar day. This allows vessels to operate where catches are
highest or efficiency is maximized depending on their port location or
any other factor.
Also as described in the response to Comment 37, NMFS did consider
management that would schedule the Federal drift gillnet fishery on
separate days to alleviate the catch accounting concern but chose not
to implement this approach due to significant uncertainty about the
total number of drift gillnet fishing days in Cook Inlet that would
result in highly unpredictable effort and catch.
NMFS acknowledges that there is not a prohibition on recreational
(sport) salmon fishing in State and Federal waters on the same day. As
described in section 4.5.2.2 of the Analysis, fewer than 70 salmon per
year are estimated to be harvested by recreational salmon fishing in
the Cook Inlet EEZ Area. Furthermore, recreational anglers are not
allowed to harvest additional salmon by fishing in either or both
areas--the same bag limit applies in State and Federal waters and
anglers are prohibited from catching or possessing a bag limit for both
State and Federal waters on the same day. Therefore, there is no
identified management need to prohibit recreational fishing in State
and Federal waters on the same calendar day. If recreational salmon
harvests in the Cook Inlet EEZ Area increase in the future, the Council
may recommend and NMFS may choose to implement additional restrictions
on recreational salmon fishing as needed.
Comment 32: If NMFS implemented escapement-based management rather
than a TAC, then there would be no need to prohibit vessels from
fishing in State and Federal waters in the same trip.
Response: Escapement-based management was considered during the
development of this action under Alternative 2, which would have
delegated management authority to the State. Delegated management under
Alternative 2 would not have included a prohibition on fishing in both
State and Federal waters on the same calendar day and provided for the
State's use of their escapement-based tools to achieve Federal
reference points. However, the State refused to accept delegated
management. The response to Comment 21 describes why escapement-based
management as currently conducted by the State could not be implemented
by this action.
Comment 33: Opening the whole EEZ and drift gillnet Area 2 will
spread out the small drift gillnet fleet (less than 300 boats in recent
years), reducing pressure on returning non-sockeye stocks and allowing
maximum harvest of abundant sockeye stocks.
Response: Under this final rule, the entire Cook Inlet EEZ Area
will be open to drift gillnet salmon fishing during established fishing
periods. Because this is similar to historical State management of the
Area, as described in the response to Comment 25, NMFS remains
concerned about mixed-stock harvests and impacts to less abundant
stocks and will manage salmon fishing within the Cook Inlet EEZ to
prevent overfishing on all stocks through the use of TACs and inseason
information.
While there have been fewer participants in recent years, this
trend could reverse and over 200 additional latent permits could
reenter the fishery, which must be considered in this long-term
management framework.
Drift gillnet Area 2 is entirely within State waters and will
continue to be managed by the State and is outside the scope of this
action.
Federal Commercial Fishing Season and Fishing Periods
Comment 34: Many commenters expressed concern about the amount of
fishing that this action will allow between July 15 and August 15, when
certain stocks are migrating north through the Cook Inlet EEZ. Fishing
by the drift fleet in EEZ waters from July 16 through July 31 is highly
impactful
[[Page 34738]]
due to large catches and mixed stocks. Commenters noted that currently
the drift gillnet fishery can only fish once per week during this
critical period for migrating stocks and additional openings from July
16 through July 31 are authorized only under certain conditions and in
limited areas. Multiple regional tribes, Northern district communities,
and regional sportfishing organizations recommended that NMFS allow
only one EEZ opening per week between July 15 and July 31, or until the
season closure date. The State and one other commenter proposed that
NMFS close the Cook Inlet EEZ to fishing after July 15.
Response: Upon reviewing the significant public comment received
regarding the number of fishing periods in the proposed rule for this
action and the importance of Cook Inlet salmon resources to all salmon
users throughout Cook Inlet, NMFS agrees that it is prudent for
conservation of Cook Inlet salmon stocks to reduce the number of
commercial fishery openings in the Cook Inlet EEZ Area to one per week
in late July. The reason for this change is discussed in detail above
in the section on changes from the proposed to final rule and briefly
summarized here.
In addition to establishing TACs that are suitably precautionary in
light of uncertainty, the other primary means by which NMFS prevents
overfishing and ensures all stocks are able to meet their escapement
goals is by managing the amount and timing of scheduled fishing
periods. In this final rule, NMFS has decided to decrease the number of
commercial fishing openings between July 16 and July 31 from two to one
per week. This more closely aligns with the number of openings under
the status quo and is responsive to the significant public comments
received on the importance of this time period to Northern Cook Inlet
salmon stocks that transit through the EEZ to spawning grounds. From
June 19 until July 15, and from August 1 to August 15, there will still
be two drift gillnet fishery openings per week, unless otherwise
closed. NMFS expects that when there are high salmon abundances, and no
constraining stocks, this management framework will allow for harvest
of TACs in the Cook Inlet EEZ Area.
Decreasing the number of fishing periods in the second half of July
may also have other important conservation and management benefits.
First, it allows for more even utilization of the beginning, middle,
and late returning components of each salmon stock. Second, it may
decrease the risk of a smaller TAC for one salmon species being reached
and resulting in a closure of the fishery before the larger, high value
sockeye salmon TAC can be fully achieved. For example, while Chinook
salmon are not harvested in large quantities by the drift gillnet fleet
in the Cook Inlet EEZ Area, declines in Chinook salmon abundance have,
in some cases, entirely eliminated the harvestable surplus of Chinook
(i.e., escapement goals cannot be achieved even if no fish are
harvested). As a result, the Chinook salmon TACs established for the
Cook Inlet EEZ Area are likely to be relatively small. Although very
few Chinook have historically been caught after August 1, significant
numbers have been caught in the second half of July. Reducing fishing
time in the second half of July makes it less likely that a Chinook TAC
will be reached, triggering a closure before the sockeye salmon TAC has
been harvested.
As described in the preamble to the proposed rule, NMFS considered
but rejected other management measures that would provide fewer drift
gillnet fishing periods per week in the Cook Inlet EEZ Area. NMFS
determined that allowing only one 12-hour drift gillnet fishing period
per week in the Cook Inlet EEZ Area throughout the entire season may
not allow for adequate harvest opportunities in the Cook Inlet EEZ Area
in years when salmon abundances are higher. Similarly, a fixed July 15
closure would be expected to unnecessarily limit harvest in the Cook
Inlet EEZ Area to less than half of its historical amount.
Comment 35: The State objected to the drift gillnet fishing season
ending on August 15, as it stated that allowing fishing in the Cook
Inlet EEZ during the August 1 to August 15 time period conflicts with
its 1 percent rule. Under that State regulation, from August 1 to
August 15, if less than 1 percent of the season's total drift gillnet
sockeye salmon harvest has been taken per fishing period for two
consecutive fishing periods in the drift gillnet fishery, the fishery
is restricted to the west side of Upper Cook Inlet where the fleet is
less likely to catch salmon from weak stocks or those needed to provide
a harvestable surplus to other users. These area restrictions are also
implemented if the East Side Set Net fishery is closed. The State
stated that the proposed closure date of August 15 rule is not based on
conservation objectives and fails to coordinate with the existing Cook
Inlet allocation processes.
Response: NMFS chose not to implement a regulation similar to the
State's 1 percent rule for the Cook Inlet EEZ Area. NMFS expects that
the season closure date of August 15 combined with the TAC will be
sufficient to address conservation and management of coho salmon stocks
in Cook Inlet. In most Federal fisheries, a TAC-based closure occurs
before a season closure date. NMFS does not anticipate that drift
gillnet fishing in the Cook Inlet EEZ Area will be open through August
15 in all years. NMFS will close the fishery when necessary to prevent
exceeding a TAC. However, in years when salmon abundance supports
higher TACs, two fishery openings per week for all of the season
besides July 16-July 31 is expected to provide sufficient opportunities
to harvest the available TAC by August 15 without creating conservation
concerns for stocks of lower abundance.
Comment 36: Consider opening drift gillnet fishing in the Cook
Inlet EEZ and Area 2 for two or three 12-hour periods a week. When the
Kenai River reaches the lower end of the sockeye escapement goal, the
commercial fleet should get additional openers to maximize harvest to
protect the river from overescapement.
Response: As described in the preamble to the proposed rule and
above, NMFS carefully considered the number of weekly commercial drift
gillnet fishing periods. As described in the response to Comment 2,
management of the Cook Inlet EEZ Area must balance utilization of
abundant salmon stocks with protecting less abundant stocks from
overfishing and ensuring stocks important to users other than the drift
gillnet fleet continue to meet their escapement goals. While two 12-
hour openings per week was proposed by NMFS, public commenters
identified significant potential conservation concerns associated with
increasing Cook Inlet EEZ Area commercial fishing time from the status
quo. Opening the Cook Inlet EEZ Area to commercial fishing for three
12-hour periods per week would represent a major increase in fishing
time and could significantly exacerbate the conservation concerns
identified in this final rule. Kenai sockeye salmon reaching their
escapement goal does not provide information to managers that other
salmon stocks (e.g., other sockeye, coho, and Chinook salmon) can also
support additional harvest at that time.
There are also potential procedural challenges associated with
significant inseason changes or adjustments. Sections 2.5.2.6 and
2.5.13 of the Analysis detail the constraints of the harvest
specifications (i.e., the TAC amounts) that it must publish prior to
the fishing season. If there are
[[Page 34739]]
unexpectedly large salmon returns, fishing may continue for the
remaining days for the season until any TAC amount is reached. If a TAC
amount is reached and the fishery closes, but the best scientific
information available indicates there is still a harvestable surplus,
NMFS may adjust the TAC and reopen the fishery until August 15, or the
revised TAC amount(s) is reached, whichever comes first. In addition,
the Federal reference points established by this action and required by
the Magnuson-Stevens Act are not directly equivalent to State
escapement goals.
Drift gillnet Area 2 is entirely within State waters and will
continue to be managed by the State and is outside the scope of this
action.
Comment 37: Do not conduct Federal openings on the exact same
schedule as State openings. Combining the two on the same day will
result in nothing more than lost opportunity and inefficiency of effort
and cost.
Response: This final rule at Sec. 679.118(e) provides that the
Cook Inlet EEZ will be open to drift gillnet fishing for two, 12-hour
periods each week, from 7 a.m. Monday until 7 p.m. Monday, and from 7
a.m. Thursday until 7 p.m. Thursday from the later of the third Monday
in June or June 19 until July 15, and from August 1 to August 15, and
one, 12-hour fishing period on Thursdays from July 16 to July 31, until
either (1) the TAC is reached, or (2) August 15, whichever comes first.
As discussed in the proposed rule and sections 2.5.9 and 4.8 of the
Analysis, NMFS considered whether to open the Cook Inlet EEZ Area to
drift gillnet fishing on different days than when State waters are
open. NMFS chose to open the Cook Inlet EEZ Area on the same days to
avoid unpredictable impacts to Cook Inlet salmon stocks, as additional
days of fishing in a week would put additional pressure on stocks of
lower abundance, allowing those stocks less opportunity to pass through
the EEZ with sufficient abundance to both meet escapement goals and
provide a harvestable surplus to all other users. If the EEZ were open
on days when adjacent State waters were closed, and the State
maintained its existing management plan, it is likely there would be a
significantly increased number of total drift gillnet fishing days in
upper Cook Inlet. This would increase the likelihood of harvests that
are too high (the drift gillnet fleet has the potential to harvest over
300,000 salmon per opening) and it may not be possible to mitigate the
impacts of additional fishing days each week in Cook Inlet, even with
severe restrictions or closures of later occurring fishery sectors.
Further, to achieve OY while preventing overfishing in salmon
fisheries, an important consideration is balancing harvest and
escapement over the period salmon are returning. Providing regular
periods when fishing is closed allows early, middle, and late returning
components of each salmon stock to move up Cook Inlet to their natal
spawning streams. By largely maintaining the existing fishing schedule,
these migratory periods where fishing is closed--and which have largely
been successful in allowing Northern District stocks to meet their
escapement goals--are maintained.
Fishery participants may select whether to fish in State or Federal
waters each day to maximize their harvest opportunities as salmon
stocks move up Cook Inlet. NMFS acknowledges that, within a single
fishing day, this may decrease efficiency and increase costs during
times when salmon abundance may be unpredictably concentrated on the
State/EEZ boundary. Across years, there is a high level of variability
in the spatial and temporal distributions of salmon stocks migrating
through Cook Inlet waters, including the Cook Inlet EEZ Area, due to
changes in wind, tide, water temperature, and other factors. Therefore,
it is very difficult to predict with accuracy any change in efficiency
that may result from this rule.
Comment 38: Several drift gillnet stakeholders requested that the
commercial fishing season start several weeks early (June 1) and finish
later (September 15) to increase harvests of all salmon species,
including pink and chum salmon.
Response: As described in the preamble to the proposed rule,
historically drift gillnet fishing in Cook Inlet has not occurred prior
to the third week in June as sockeye, coho, chum, and pink salmon are
not present in commercially significant quantities in the Cook Inlet
EEZ. The start date is based on this history of commercial fishing in
the EEZ area. Further, as discussed in the preamble to the proposed
rule, NMFS has concerns about additional impacts from the drift gillnet
fleet to Chinook salmon that are present in the Cook Inlet EEZ before
June 19. Opening after mid-June helps avoid potential additional
impacts to early-run Cook Inlet Chinook salmon stocks. These stocks
migrate through upper Cook Inlet in May and early June. For these
reasons, NMFS did not choose to open drift gillnet fishing within the
Cook Inlet EEZ prior to the third week in June.
NMFS has concerns that additional fishing time after August 15
could result in disproportionate impacts to coho salmon stocks in Cook
Inlet. Fishing in the Cook Inlet EEZ after August 15 would be expected
to primarily increase harvests of this species. Based on recent indices
of spawning escapements, additional harvests of coho salmon may result
in a failure to achieve spawning escapement goals. The EEZ is
relatively far from Northern District streams and associated weirs
where escapements are monitored. As such, fishery openings targeting
coho salmon (which have an elevated conservation concern) in the EEZ
carry the largest risk in terms of potential harvest on Northern
District stocks prior to information about the achievement of spawning
escapement goals. In contrast, State waters are closer to natal streams
and can be prosecuted more precisely on target stocks and during a time
when escapement data is more likely to be available since there is
significantly less travel time between the State fishery and weirs.
This action does not modify management of State waters, and it is
expected that the majority of coho salmon harvests, which occur in
State waters after August 15, will be unaffected by this action.
NMFS disagrees that closing the fishery later than August 15 would
increase pink and chum salmon harvests. Historically, by August 15,
over 99 percent of the average Chinook, sockeye, pink, and chum salmon
harvest has been completed in both State and EEZ waters as those salmon
species have largely moved through Cook Inlet EEZ waters and up into
Cook Inlet State marine and fresh waters by that time (section
4.5.1.2.1. of the Analysis). Therefore, additional Cook Inlet EEZ Area
fishing time after August 15 would be expected to impact only coho
salmon, for which there are conservation concerns.
Comment 39: With amendment 16, NMFS's inseason management authority
to close the fishery should be based on best available science and
salmon escapement goals. NMFS needs more access to funding and
resources to carry out these goals.
Response: NMFS will use the best scientific information available
when making any inseason management decisions. NMFS will consider all
sources of information when determining what constitutes the best
scientific information available. However, for the reasons explained in
Comment 23, NMFS inseason management decisions are based on TACs. NMFS
will consider the escapement goals and the best scientific information
available regarding
[[Page 34740]]
projected run sizes for an upcoming fishing season during the stock
assessment and harvest specifications process. The SSC and NMFS will
account for scientific uncertainty in these projections when setting
ABC, and the Council and NMFS will also consider management uncertainty
in recommending and establishing TACs. Inseason closures before the end
of the season are most likely to be based on information suggesting an
additional opener would result in exceeding a TAC for any species or
could result in overfishing of any stock. NMFS will consider available
spawning abundance information inseason (i.e., progress toward meeting
escapement goals) to ensure the abundance assumptions underlying the
TACs are appropriate and will identify any potentially needed
management changes.
NMFS will strive to make timely and efficient inseason management
decisions, consistent with the APA, Federal regulations, and other
applicable law. NMFS will work to build capacity and resources for
salmon management in the Cook Inlet EEZ Area over time, however NMFS
has determined that it can successfully implement amendment 16 at this
time.
Comment 40: Pacific salmon evolved into the species we know today.
Today, various stocks of salmon are considered threatened or endangered
under the Endangered Species Act (ESA). Originally, indigenous people
developed a social custom that delayed the start of salmon fishing and
allowed salmon to reach their spawning grounds and complete their
lifecycle, and this has been continued by government regulators.
Flexibility in the opening and closing dates is needed to account for
variations in run timing and migration patterns, especially under
climate change, to avoid adversely affecting sport and subsistence
fishers. The proposed new date of the third (or possibly fourth) Monday
in June allows more flexibility.
Response: NMFS recognizes the evolution of conservation and
management measures for salmon stocks as jurisdictions have changed
over time. No salmon stocks spawning in Alaska are listed under the
ESA. As described in the response to Comment 38, NMFS established the
fixed season start and end dates to maintain historical harvest
patterns and avoid adverse impacts to non-target salmon stocks within
the Cook Inlet EEZ Area. However, NMFS does agree that flexibility is
important to account for variations and contingencies and expects that
the TACs and associated inseason actions will ensure that harvest is
adjusted to the specific conditions experienced during each fishing
season to provide harvest opportunity and prevent overfishing, within
the established commercial fishery season dates (approximately June 19
to August 15). NMFS may close and reopen fishing during the season to
account for run conditions.
Comment 41: The season ending date needs to reflect the size of the
return, which is not known until the very end of a salmon run or
shortly thereafter.
Response: NMFS acknowledges that the realized run size of a stock
is not fully known until the end of the fishing season, but has
selected a fixed season closure date that falls after nearly all EEZ
harvest has historically taken place and avoids potential new impacts
on coho stocks of lower abundance. However, NMFS will use its inseason
management authorities specified at Sec. 679.25 to adjust the closure
of the fishery based on TAC or other scientific information each year--
up to August 15--including available indices of abundance (e.g., test
fishery data and spawning escapements).
Monitoring, Recordkeeping, and Reporting Requirements
Comment 42: ADF&G supports the monitoring, recordkeeping,
reporting, legal gear, and prohibitions proposed for the commercial
salmon fishery in the Cook Inlet EEZ Area. These requirements are
necessary to minimize conflicts between fisheries in State and Federal
waters, ensure accurate catch accounting, and facilitate enforcement of
Federal regulations. The proposed prohibitions on fishing in both State
and EEZ waters on the same day and having on board or delivering fish
harvested in both State and EEZ waters are particularly important to
meeting these objectives and the State supports including them in the
final rule. We also support the proposed prohibitions on landing or
otherwise transferring salmon that is caught within the Cook Inlet EEZ
Area in the EEZ to ensure that harvesting vessels delivering to a
tender vessel do so within State waters.
Response: NMFS acknowledges the support for these fishery
management measures. NMFS agrees that the measures in this final rule
are necessary to minimize conflicts between fisheries in State and
Federal waters, ensure accurate catch accounting, and facilitate
enforcement of Federal regulations.
Comment 43: ADF&G supports the proposed monitoring requirements to
enforce the prohibitions on drift gillnet fishing in State and Federal
waters on the same day, including requirements for commercial salmon
fishing vessels in the Cook Inlet EEZ Area to operate a VMS and
complete a Federal logbook. NMFS may wish to consider onboard
monitoring requirements such as electronic monitoring or observers to
ensure adequate total catch accounting.
Response: NMFS acknowledges the support for the VMS and Federal
logbook management measures described in the proposed rule and required
by this final rule. As discussed in sections 2.5.6 and 4.7.2.2 of the
Analysis, NMFS considered but did not require electronic monitoring or
observers due to high costs and limited additional management utility
beyond the measures contained in this final rule.
Comment 44: NMFS received comments that a VMS requirement is not
necessary. These comments indicated that the drift gillnet fishery has
minimal or no bycatch of marine mammals, sea birds, or protected fish
stocks; there are no closed economic zones nearby; and that there is no
VMS requirement in salmon fisheries in the East and West Areas of the
EEZ, where ADF&G reporting requirements are deemed sufficient.
Commenters also asserted that NMFS did not provide a legitimate or
sufficient justification for the VMS requirement. Several commenters
also said that they felt NMFS was imposing it as a punishment. One
commenter asked if other forms of electronic monitoring are required.
Commenters also noted that the VMS devices cost 3,000 dollars, which
can be a significant portion of their gross earnings in seasons when
there is a declared fishery disaster, and require additional monthly
fees to operate.
Response: The final rule at Sec. 679.117(b)(1)(xiv) prohibits a
vessel named, or required to be named, on an SFFP from operating in the
waters of Cook Inlet with drift gillnet gear on board any day the Cook
Inlet EEZ Area is open to commercial salmon fishing without a
functioning VMS as described in Sec. 679.28(f). Regulations at Sec.
679.28(f)(6)(x) requires a vessel named, or required to be named, on an
SFFP issued under Sec. 679.114 to use VMS when operating in the waters
of Cook Inlet with drift gillnet gear on board on any calendar day the
Cook Inlet EEZ Area is open to commercial salmon fishing. NMFS has
determined that use of a VMS is necessary to effectively and
efficiently manage the fishery. A VMS requirement is not punitive, it
is not based on assumed bycatch of protected species nor intended to
reduce bycatch, and NMFS disagrees that there are no closed fishing
areas adjacent to the Cook Inlet EEZ Area. NMFS relies on VMS for most
Federal fisheries off Alaska, particularly
[[Page 34741]]
when fishing vessels must comply with area restrictions. Vessels drift
gillnet fishing for salmon in the Cook Inlet EEZ Area are prohibited
from fishing in the adjacent EEZ waters south of the Anchor Point line
at all times and, on the same calendar day, in the State waters
directly adjacent to the eastern, western, and northern boundaries of
the Cook Inlet EEZ Area. As stated above, for the purposes of catch
accounting and enforcement it is critical for NMFS to understand where
a vessel has been fishing--in State or Federal waters. Drift gillnet
vessels that are fishing for salmon in the Cook Inlet EEZ are therefore
subject to closed areas, and VMS is a standard technology used to
monitor compliance with these regulations.
NMFS acknowledges that VMS is not a requirement in the East Area
commercial troll salmon fishery. However, management of the East Area
is delegated to the State, which allows fishing to occur seamlessly
across the EEZ boundary. The State has well-established monitoring and
enforcement infrastructure as well as other regulations to manage the
fishery without the use of VMS. Similarly, the delegated management
approach proposed for the Cook Inlet EEZ Area under Alternative 2
(section 2.4.8.1 the Analysis) was not expected to include a VMS
requirement given the State's existing management tools and expertise.
However, the State would not accept delegated management authority, and
therefore under this final rule VMS is needed to enforce the
prohibition against harvesting salmon in both State and Federal waters
on the same calendar day.
As described in sections 2.5.6 and 4.7.2.2 of the Analysis, NMFS
considered but chose not to require more costly onboard observers or
electronic monitoring camera systems in this fishery. Therefore, VMS
data and logbooks are necessary to ensure accuracy of reported fishing
effort, catch accounting, and compliance with regulations. Critically,
NMFS managers will depend on VMS to determine the effort and projected
catch in order to inform management decisions. Furthermore, without
VMS, NOAA Fisheries Office of Law Enforcement would have to rely
exclusively on resource-intensive patrols by air and sea; methods that
are not as consistent as VMS in verifying that no fishing is occurring
in closed waters and confirming fleet-wide reported fishing effort
information.
Vessel owners will be responsible for the cost of obtaining and
operating a VMS. As discussed in section 4.7.2.2.7 of the Analysis,
NMFS estimates the cost of purchasing a compliant VMS unit at 3,100
dollars. One-time installation and tax costs are estimated at 888
dollars. Annual service and maintenance is estimated at 206 dollars.
NMFS acknowledges that these requirements place additional burden on
fishermen. However, Federal funds may be available to qualified vessel
owners or operators for complete reimbursement of the cost of
purchasing type-approved VMS units, which could offset over 75 percent
of the total purchase and installation cost for fishery participants.
To facilitate compliance with the VMS requirement, NMFS has
provided information on obtaining VMS and opportunities for
reimbursement within the small entity compliance guide published with
this final rule. Beyond VMS, this final rule does not require other
electronic monitoring for vessels commercially fishing for salmon in
the Cook Inlet EEZ.
Comment 45: VMS devices impose a significant privacy cost,
requiring vessel owners to transmit their exact location to NMFS every
hour of every day, regardless of why they are using their vessel.
Response: NMFS disagrees. VMS use would be required when operating
a vessel named, or required to be named, on an SFFP in the waters of
Cook Inlet with drift gillnet gear on board, and only on days when the
Cook Inlet EEZ Area is open to commercial salmon fishing. When a vessel
is operated outside the waters of Cook Inlet, the Cook Inlet EEZ Area
is closed, or no drift gillnet gear is onboard the vessel, the VMS unit
would not be required to be activated and transmitting. VMS data are
collected for many Federal fisheries. Section 402(a)(2) of the
Magnuson-Stevens Act authorizes the collection of data necessary for
the efficient management of fisheries but provides for restrictions on
the release of that data beyond NMFS. VMS collects vessel location
information in near real time that it uses to ensure efficient
management and compliance with regulations. VMS data collected for law
enforcement purposes is considered confidential under sections
311(b)(1)(a)(vi) and 402 of the Magnuson-Stevens Act. Federal
regulations at Sec. 679.28(f)(3)(v) provide that vessel owners
participating in a fishery that requires a VMS must make the VMS
transmitter available to ``NMFS personnel, observers, or an authorized
officer.'' Federal regulations at Sec. 600.1509(b) limit the
circumstances under which personally identifying information, including
business identifiable information, can be disclosed beyond authorized
entities, such as NMFS. NMFS does not release confidential data to the
public unless directed by a court order. If NMFS uses VMS data in
publications, it is aggregated to prevent release of confidential
information.
Comment 46: Will the drift gillnet fishery participants be required
to maintain a digital logbook?
Response: This final rule does not require a digital logbook. Under
regulations at Sec. 679.115, this action requires vessel operators to
complete and submit logbooks in paper or electronic format. NMFS will
make logbook sheets available to participants at no cost.
Comment 47: The proposed rule appears to allow new participants
into the commercial fishery by requiring only a Federal fisheries
permit and provides no explanation or justification for doing so.
Commercial fishing for salmon in Federal and State waters in Cook Inlet
has been restricted to State CFEC limited entry permit holders since
1974. If the permitting requirements under this action allow new
participants by no longer requiring a CFEC permit, that will
significantly devalue the CFEC permits held by existing participants.
If NMFS is not opening the fishery up to new participants, it must
clarify the ambiguity in the proposed rule in response to this comment.
Response: This action does not modify the State requirements
related to CFEC permits. As described in section 2.5.6 of the Analysis,
NMFS issues Federal permits authorizing participation in Federal
fisheries and allowing for implementation of Federal monitoring,
recordkeeping, and reporting requirements in order to manage fisheries.
This final rule at Sec. 679.114(b)(1) requires vessel owners or
operators to obtain a SFFP to commercially fish for salmon in the Cook
Inlet EEZ. NMFS will issue SFFPs free of charge. A SFFP is not a
Federal limited entry permit. As described in section 2.5.15 of the
Analysis, a Federal limited entry program was considered but not
selected.
Although the SFFP is not a limited entry permit, vessels that land
salmon from the Cook Inlet EEZ in Alaska must also comply with all
applicable State requirements, which include the requirement to have
the appropriate State CFEC permit, which is a limited entry permit.
Because landing or transferring fish in the EEZ is prohibited, and
there are significant logistical constraints to landing salmon outside
of Alaska, NMFS anticipates that all participating vessels will land
[[Page 34742]]
their fish within the State of Alaska where they would be required to
have State CFEC S03H limited entry permits. This will help ensure that
historical participants in the fishery are not displaced or disrupted
by new entrants and avoid negative impacts to CFEC permit values.
As described in section 2.5.15 of the Analysis, in the future the
Council may consider whether it is necessary to recommend an FMP
amendment to limit entry in the Cook Inlet EEZ Area.
Comment 48: Can a vessel registered in a separate Alaska gillnet
area (e.g., a vessel fishing in Bristol Bay state waters) participate
in the Federal Cook Inlet fishery?
Response: No, as explained in response to Comment 47, in order to
use drift gillnet gear in the Cook Inlet EEZ Area, participants are
required to have a SFFP. State CFEC permit requirements fall under the
purview of the State and are not modified by this final rule. NMFS
anticipates that a CFEC S03H permit for Cook Inlet drift gillnet would
continue to be required to land fish caught using drift gillnet gear in
the Cook Inlet EEZ Area in Alaska. Participants should consult the
applicable State of Alaska regulations for a definitive answer
regarding landing requirements.
Comment 49: The State supports maintaining the requirement for
drift gillnet vessels in the EEZ to have the appropriate CFEC permit(s)
to land salmon or other species caught in the EEZ within the State or
enter State waters.
Response: NMFS acknowledges this comment. This final rule does not
modify any State requirements for landing salmon or other species
caught in the EEZ within the State or transiting through State waters
with drift gillnet gear on board.
Other Commercial Salmon Fishing Management Measures and Prohibitions
Comment 50: The State supports the proposed legal gear definition
for drift gillnet fishing of a net no longer than 200 fathoms (365.76
m) in length, 45 meshes deep, and maximum mesh size of no greater than
6 inches (15.24 cm). The proposed definition is consistent with State
regulations and would help maintain consistency with recent fishery
operations in terms of effort and selectivity and enable managers to
estimate projected catches in the fishery more effectively.
Response: NMFS acknowledges this comment.
Comment 51: Are the net length requirements the same as State
waters or can a single permit fish 200 fathoms (365.76 m) in Federal
waters?
Response: This final rule at Sec. 679.118(f)(1) limits the length
of drift gillnet gear in the Cook Inlet EEZ Area to a maximum length of
200 fathoms (365.76 m) for all participants. Fishery participants
should consult State of Alaska regulations when determining what amount
of gear is allowable when transiting State waters and landing salmon in
Alaska with the CFEC permit(s) they hold.
Comment 52: One commenter stated that no more than 150 fathoms
(274.32 m) of gillnet gear per permit should be allowable. Another
suggested that NMFS impose the same State of Alaska CFEC rules
regarding permits (i.e., allow 150 fathoms (274.32 m) for 1 CFEC
permit, and 200 fathoms (365.76 m) for 2 CFEC permits).
Response: NMFS disagrees with these recommendations. As described
in section 4.5.1.2.1 of the Analysis, up to 200 fathoms (365.76 m) of
drift gillnet gear may be used by participants who are drift gillnet
fishing in the Cook Inlet EEZ Area. NMFS does not anticipate this final
rule will increase the allowable length of gear and result in increased
harvests in the Cook Inlet EEZ Area, as State restrictions on the
amount of gear a vessel can have on board will still apply when
transiting through State waters following a fishing trip in the Cook
Inlet EEZ Area.
Fishery participants should consult State of Alaska regulations to
determine the amount of fishing gear they are allowed to have on board
while transiting through State waters and landing salmon in Alaska.
Recreational Fishing
Comment 53: The State supports the proposed management measures for
recreational anglers in the EEZ, including requirements for allowable
gear, processing harvested salmon and reporting harvest. The proposed
rule would establish bag and possession limits in Federal regulations
consistent with current State regulations; however, we note that State
regulations could change in the future and result in different
regulations for anglers harvesting salmon in State waters and the EEZ.
Response: NMFS acknowledges this comment.
National Standard 2
Comment 54: NMFS failed to use the best scientific information, as
required by National Standard 2. One example of this is the data used
to calculate a potential TAC, as it is unknown what percent of fish
have been harvested in the EEZ. ``Best guess'' data should not be used.
Similarly, NMFS relied on State catch records, but those may be
skewed by 20 percent or more due to the history of overescapement and
pulling the in-river fish counters prior to the end of the later runs.
The one good historical reference is the Offshore Test Fishery, which
should be used in the analysis and to set TACs. Previous years run data
cannot be considered reliable because Cook Inlet has not been properly
managed for many years which has resulted in overescapement and stock
declines. Consider modifying the historical percent of drift gillnet
harvests attributed to the Cook Inlet EEZ to 65 percent.
Response: NMFS disagrees that the management measures implemented
by amendment 16 and this final rule rely on information that is
inconsistent with National Standard 2. National Standard 2 provides
that conservation and management measures shall be based upon the best
scientific information available. NMFS considered and weighed all of
the information available in making the decisions, including public
testimony, to develop and approve amendment 16, respectively.
NMFS used the best scientific information to inform the Analysis,
which includes comprehensive fish ticket data including locale codes.
Previously, data regarding harvests, landings, and statistical areas in
Upper Cook Inlet did not differentiate between State and Federal
waters. Therefore, NMFS had to develop a methodology to estimate
historic salmon harvest in the Cook Inlet EEZ. The methodology used to
develop EEZ harvest estimates for the Cook Inlet EEZ Area is presented
in section 4.5.1.2.3 of the Analysis, along with a description of the
associated uncertainties. This method and the results were reviewed and
approved by the SSC, which agreed that the Analysis and harvest
specification process relies on the best scientific information
available. NMFS received no comments providing additional data to
estimate EEZ harvest and no suggested alternate methodologies and
cannot arbitrarily increase the attribution of historical harvest to
the EEZ in the absence of any supporting data. Therefore, NMFS
determined that the estimates presented in the Analysis constitute the
best scientific information available.
However, this action establishes a fishery management framework
that is adaptive, and is expected to improve the scientific information
available for management of Cook Inlet salmon stocks over time. Once
amendment 16 is implemented, NMFS will collect the
[[Page 34743]]
landings information needed to directly and precisely determine EEZ
harvests. NMFS will review the information available to manage Cook
Inlet salmon stocks each year, including any data gaps and
uncertainties. As actual data is collected on harvest in this new
fishery, NMFS will include that information in the ongoing assessment
of what constitutes best scientific information available at that time,
reviewed by the SSC, to establish harvest specifications and manage the
Cook Inlet EEZ Area.
NMFS agrees that the offshore test fishery may be a useful source
of information for management of the Cook Inlet EEZ salmon fishery, but
disagrees that it should have relied on it. The offshore test fishery
provides standardized CPUE information. However, as described in the
response to Comment 29 and in section 2.4.4 of the Analysis, CPUE data
could not provide sufficient information to evaluate salmon abundance
and determine whether catches exceed a level that could cause
overfishing.
National Standard 3
Comment 55: Defining fishing as limited to the Cook Inlet EEZ
violates National Standard 3. NMFS's definition of the fishery fails to
manage salmon stocks as a unit throughout their range. Splitting the
fishery into a Federal and State fishery makes the Federal fishery
subordinate to the State fishery because the State fishery will
continue overescapement. If there are harvestable surpluses, waiting to
find out via the State fishery will mean the EEZ fishery will be
compromised by State management.
Response: As explained in greater detail in the proposed rule, NMFS
has determined that amendment 16 is consistent with National Standard
3. As set forth under section 301 of the Magnuson Stevens Act, National
Standard 3 provides that, to the extent practicable, an individual
stock of fish shall be managed as a unit throughout its range, and
interrelated stocks of fish shall be managed as a unit or in close
coordination.
The key term here is ``practicable.'' It is not practicable for
NMFS to manage salmon stocks into State waters where NMFS has no
management jurisdiction, and, thus, NMFS has designed management
measures that allow it to manage stocks of salmon as a unit throughout
the portion of their range under NMFS's authority, grouping
interrelated stocks of salmon together because vessels cannot target
individual stocks in the EEZ. Amendment 16 will allow NMFS to manage to
optimum levels of EEZ harvest while preventing overfishing, but NMFS
cannot rely on National Standard 3 as a basis to assert management
authority over State waters.
Furthermore, the National Standard 3 guidelines explain how to
structure appropriate management units for stocks and stock complexes
(Sec. 600.320). These guidelines state that the purpose of National
Standard 3 is to induce a comprehensive approach to fishery management
(Sec. 600.320(b)). The guidelines define management unit as a fishery
or that portion of a fishery identified in an FMP as relevant to the
FMP's management objectives and state that the choice of a management
unit depends on the focus of the FMP's objectives and may be organized
around biological, geographic, economic, technical, social, or
ecological perspectives (Sec. 600.320(d)). As discussed above, in
defining the fishery, NMFS primarily focused on co-occurring salmon
stocks harvested within the Cook Inlet EEZ Area, as that geographic
area defines the routine limits of NMFS's management jurisdiction.
There are unique technical, ecological, and economic features of
salmon fishing in the Cook Inlet EEZ Area that further support limiting
the management unit to the Cook Inlet EEZ. As described in the preamble
to the proposed rule, drift gillnet gear captures all salmon in an
area, and an entangled salmon cannot be released without an extremely
high mortality rate. Further, in EEZ waters, salmon stocks are highly
mixed, and catch in the EEZ includes both the Kenai and Kasilof stocks
of sockeye salmon that are currently highly abundant, as well as much
less abundant Northern District salmon stocks. In contrast, in
nearshore waters, individual salmon stocks can be targeted by fishing
adjacent to the river a specific salmon stock is returning to. This is
not possible in EEZ waters. In other words, the EEZ is ecologically
unique compared to near-shore waters due to the highly mixed stock
nature of the fishery, with varying abundances and compositions of the
stocks caught. The stocks that are mixed in the EEZ may be more
discretely targeted in State waters management districts. Therefore,
salmon fishery management in the EEZ requires an approach that ensures
the stocks of lowest abundance are not overharvested before they reach
their natal streams. The Cook Inlet EEZ Area is also economically
unique because the drift gillnet fleet has exclusive use of the area
for commercial salmon fishing. Within State waters, there are multiple
commercial and non-commercial fishery sectors operating to selectively
target specific individual stocks to the extent practicable, with
management measures in place to limit catch and mortality on stocks at
risk of overfishing.
Federal management of the Cook Inlet EEZ Area under amendment 16
achieves National Standard 3 objectives through coordination with the
State to the extent practicable before, during, and after each fishing
season, as described in the harvest specifications and annual processes
section of this preamble. This includes reviewing the available
scientific information for management of Cook Inlet salmon stocks held
by the State, as well as other sources, and estimating what harvests
are expected in State waters to inform harvest limits for the Cook
Inlet EEZ Area that are designed to prevent overfishing on all Cook
Inlet salmon stocks. NMFS and the Council will evaluate both where
harvest of salmon stocks may be constrained by the presence of stocks
of low abundance and where there may be opportunities to harvest
additional salmon that would not otherwise be utilized. NMFS will
provide data on early EEZ catches to the State to inform run strength
forecasts for management of all other upper Cook Inlet salmon
fisheries.
National Standard 4
Comment 56: This action discriminates against Cook Inlet commercial
fishers. Amendment 16 violates National Standard 4 as it does not
allocate fishing privileges in a way that is fair and equitable. It
places a TAC on one group of harvesters (the drift gillnet fleet) in
one area (the EEZ), without a similar requirement on any other group.
This can severely affect the economic viability of the drift gillnet
fleet if the TAC is set incorrectly, and the drift gillnet fleet is
precluded from harvesting the excess salmon. In addition, requiring a
VMS system to commercial fish in Federal waters is not equitable as
there is no similar requirement for the recreational fishery sector, or
any VMS requirement for vessels fishing salmon in the East Area.
Response: NMFS disagrees that amendment 16 is inconsistent with
National Standard 4, or that it allocates harvest in a manner that is
not fair and equitable to the drift gillnet fleet. As set forth under
section 301 of the Magnuson Stevens Act, National Standard 4 provides
that conservation and management measures shall not discriminate
between residents of different states. This final rule does not in any
way discriminate between residents of different states. National
Standard 4 further provides that, if it becomes necessary to allocate
or assign
[[Page 34744]]
fishing privileges among various United States fishermen, such
allocation shall be (1) fair and equitable to all such fishermen; (2)
reasonably calculated to promote conservation; and (3) carried out in
such manner that no particular individual, corporation, or other entity
acquires an excessive share of such privilege.
To start, this action allocates all commercial fishing privileges
in the Cook Inlet EEZ to the drift gillnet fleet--NMFS cannot conclude
that an allocation made to a single sector is not fair and equitable
for that sector. No other commercial sector is subject to a TAC because
no other commercial sector is permitted to fish in the EEZ at all. The
drift gillnet fleet has historically harvested over 99.99 percent of
the salmon caught in the Cook Inlet EEZ. The recreational fishery
sector in the Cook Inlet EEZ harvests the remaining amount, an
estimated average of 66 fish per year. This action is expected to
maintain the harvest range of both sectors in the EEZ and does not
allocate any harvest away from the drift gillnet fleet.
Although allocations must be fair and equitable and reasonably
calculated to promote conservation, not all management measures
required by the Magnuson-Stevens Act are subject to the same analysis.
Neither the use of TACs to manage fishery effort nor the requirement to
install VMS are allocations. The Magnuson-Stevens Act requires ACLs for
fisheries managed under the Magnuson-Stevens Act, and TACs are how NMFS
implements ACLs. And because fishing will take place adjacent to
multiple closed areas, VMS is needed to enforce and monitor time and
area closures. But even if NMFS were required to show that TACs or VMS
requirements were fair and equitable to the drift gillnet fleet when
compared to regulations that apply to the only other authorized sector
in the EEZ, the recreational sector, it easily meets that burden here.
Because the recreational sector catches under 100 fish per year in the
EEZ and because recreational anglers are prohibited from possessing or
landing the bag limit for both State and Federal waters on the same
day--and thus there is no way that sector could increase its harvest
opportunities compared to the status quo--neither a TAC nor VMS is
needed to control recreational harvest or enforce rules for
recreational fishermen.
The rationale for requiring VMS for commercial salmon fishing
vessels in the Cook Inlet EEZ Area but not the East Area is described
in the response to Comment 44.
If harvests by the recreational fishery sector increase, then NMFS
may implement monitoring, recordkeeping, or reporting measures. For the
time being, on-the-water and dockside enforcement of the recreational
fishery sector is sufficient because the same bag limits apply across
State and Federal waters for a single calendar day.
The allocation decisions referenced in National Standard 4 do not
apply to decisions made by other management authorities that govern
fishing outside of the Cook Inlet EEZ.
Comment 57: The proposed TAC does not address priority use for
Federal Subsis
[…truncated; see source link]Indexed from Federal Register on April 30, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.