NACO

National Association of Charterboat Operators

Amendment 12 Salmon Fisheries

NMFS issues regulations to implement Amendment 12 to the Fishery Management Plan for Salmon Fisheries in the EEZ off the Coast of Alaska (FMP). Amendment 12 comprehensively revises and updates the FMP to reflect the North Pacific Fishery Management Council's (Council) salmon management policy and to comply with Federal law. This action is necessary to revise specific regulations and remove obsolete regulations in accordance with the modifications in Amendment 12. This action promotes the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.

Effective January 22, 2013.

 

ADDRESSES: Electronic copies of the Fishery Management Plan for the Salmon Fisheries in the EEZ off Alaska and the Environmental Assessment/Regulatory Impact Review (EA/RIR) and Finding of No Significant Impact (FONSI) prepared for this action may be obtained from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

 

 FOR FURTHER INFORMATION CONTACT: Gretchen Harrington,  907-586-7228.

 SUPPLEMENTARY INFORMATION: This final rule implements Amendment 12 to 

the FMP. NMFS published a Notice of Availability for Amendments 10, 11, 

and 12 in the Federal Register on April 2, 2012 (77 FR 19605) with 

comments invited through June 1, 2012. NMFS published a proposed rule 

to implement Amendment 12 on April 11, 2012 (77 FR 21716) with comments 

invited through May 29, 2012. No implementing regulations are necessary 

to implement Amendments 10 and 11. NMFS approved Amendments 10, 11, and 

12 on June 29, 2012.

    The Council prepared the FMP under the authority of the Magnuson-

Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 

16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and 

implementing the FMP appear at 50 CFR part 679. NMFS approved the 

original FMP in 1979. Since then, the FMP was comprehensively revised 

by Amendment 3 in 1990, and again by Amendment 12 in 2012. The FMP 

conserves and manages the Pacific salmon that occur in the vast 

majority of the exclusive economic zone (EEZ) off Alaska. The FMP 

establishes the Salmon Management Area, which is divided into two 

management areas: the East Area is the EEZ in the Gulf of Alaska east 

of Cape Suckling (143[ordm] 53.6' West Longitude), and the West Area is 

most of the EEZ off Alaska west of Cape Suckling. The FMP manages 

commercial fishing for salmon in the West Area and delegates to the 

State of Alaska (Alaska) management of commercial and sport fishing for 

salmon in the East Area. The following paragraphs provide a summary 

description of the changes made to the FMP by Amendment 12 and the 

regulatory changes made by this final rule.

 

Amendment 12

 

    In December 2011, the Council voted unanimously to recommend 

Amendment 12 to the FMP. Amendment 12 comprehensively revises the FMP 

to reflect the Council's salmon management policy, which is to 

facilitate State of Alaska (State) salmon management in accordance with 

the Magnuson-Stevens Act, Pacific Salmon Treaty, and applicable Federal 

law. Under this policy, the Council identified six management 

objectives to guide salmon management under the FMP and achieve the 

management policy: (1) Prevent overfishing and achieve optimum yield; 

(2) manage salmon as a unit throughout their range; (3) minimize 

bycatch and bycatch mortality; (4) maximize economic and social 

benefits to the Nation over time; (5) protect wild stocks and fully 

utilize hatchery production; and (6) promote safety. The Council, NMFS, 

and the State of Alaska will consider these management objectives in 

developing future FMP amendments and associated fishery management 

measures.

    To reflect the Council's policy and objectives, Amendment 12 

redefines the FMP's management area to remove three small pockets of 

Federal waters adjacent to Cook Inlet, Prince William Sound, and the 

Alaska Peninsula from the West Area. Figure 23 to part 679 provided in 

this final rule defines the specific net fishing areas excluded from 

the West Area. (For the remainder of the preamble, these areas are 

referred to collectively as the net fishing areas and individually as 

the Cook Inlet Area, the Prince William Sound Area, or the Alaska 

Peninsula Area.) The salmon fisheries in these areas are managed by the 

State. Amendment 12 also removes the sport fishery in the West Area 

from the FMP. The Council determined and NMFS agreed that State 

management of the stocks and fisheries occurring in the net fishing 

areas and the sport fishery in the West Area is consistent with the 

policies and standards of the Magnuson-Stevens Act, and that Federal 

management of the net fishing areas and the sport fishery in the West 

Area would serve no useful purpose or provide present or future 

benefits that justified the costs of Federal management. The Council 

and NMFS determined that removing the net fishing areas and the sport 

fishery from the West Area allows the State to manage Alaska salmon 

stocks and directed fishing for those stocks as seamlessly as 

practicable throughout their range. Additional information on the 

Council's and NMFS' rationale for removing the net fishing areas and 

the sport fishery is provided in the Responses to Comments below. The 

FMP continues to apply to the vast majority of the EEZ west of Cape 

Suckling and maintains the prohibition on commercial salmon fishing in 

the redefined West Area.

    In the East Area, Amendment 12 maintains the current scope of the 

FMP and reaffirms that management of the commercial and sport salmon 

fisheries in the East Area is delegated to the State. The FMP relies on 

a combination of State management and management under the Pacific 

Salmon Treaty to ensure that salmon stocks, including trans-boundary 

stocks, are managed as a unit throughout their ranges and that 

interrelated stocks are managed in close coordination. Maintaining the 

FMP in the East Area leaves existing management structures in place, 

recognizing that the FMP is the nexus for the application of the 

Pacific Salmon Treaty and other applicable Federal law.

    Amendment 12 contains a number of provisions to update the FMP and 

bring it into compliance with the Magnuson-Stevens Act and other 

applicable Federal law. Amendment 12 includes these changes in a 

reorganized FMP with a more concise title, ``Fishery Management Plan 

for the Salmon Fisheries in the EEZ off Alaska.'' The Notice of 

Availability prepared for Amendment 12 (77 FR 19605, April 2, 2012) 

provides detailed information on the provisions of Amendment 12, as

 well as additional explanation of the Council's rationale for Amendment 

12.

    The primary new FMP provision is a mechanism to establish annual 

catch limits (ACLs) and accountability measures (AMs) for the salmon 

stocks caught in the East Area commercial troll fishery, the only 

commercial fishery authorized under the FMP. Amendment 12 does not 

establish ACLs or AMs in the West Area, because no commercial salmon 

fisheries are authorized in the West Area.

    The mechanism to establish ACLs and AMs for the East Area 

commercial troll fishery builds on the FMP's existing framework for 

establishing status determination criteria. Amendment 12 does not 

establish a mechanism for specifying ACLs and AMs for Chinook salmon 

because the Magnuson-Stevens Act exempts stocks managed under an 

international fisheries agreement in which the United States 

participates from the ACL requirement (16 U.S.C. 1853). Under Amendment 

12, the mechanisms for specifying ACLs for Tier 2 (coho salmon) and 

Tier 3 (coho, pink, chum, and sockeye salmon stocks managed as mixed-

species complexes) salmon stocks are established using the State's 

scientifically-based management measures to control catch and prevent 

overfishing. This approach represents an alternative approach to the 

methods prescribed in NMFS' National Standard 1 Guidelines (50 CFR 

600.310) for specifying ACLs. The Council recommended and NMFS approved 

an alternative approach because the State's escapement-based management 

system is a more effective management system for preventing overfishing 

of Alaska salmon than a system that places rigid numeric limits on the 

number of fish that may be caught. Escapement is defined as the annual 

estimated size of the spawning salmon stock in a given river, stream, 

or watershed.

    Amendment 12 also revises the definition of optimum yield (OY). For 

Chinook salmon stocks in Tier 1, an all-gear maximum sustainable yield 

(MSY) is prescribed in terms of catch by the Pacific Salmon Treaty and 

takes into account the biological productivity of Chinook salmon and 

ecological factors in setting this limit. Under Amendment 12, the 

portion of the all-gear catch limit allocated to troll gear represents 

the OY for that fishery and takes into account the economic and social 

factors considered by the State in making allocation decisions. For 

stocks in Tiers 2 and 3, MSY currently is defined in terms of 

escapement. MSY escapement goals account for biological productivity 

and ecological factors, including the consumption of salmon by a 

variety of marine predators. Under Amendment 12, the OY for the troll 

fishery is that fishery's annual catch, which, when combined with the 

catch from all other salmon fisheries, results in a post-harvest run 

size equal to the MSY escapement goal for each indicator stock. The 

portion of the annual catch harvested by the troll fishery reflects the 

biological, economic, and social factors considered by the State in 

determining when to open and close the coho salmon harvest by the troll 

fishery. For the redefined West Area under Amendment 12, commercial 

fishing is prohibited; therefore the directed harvest OY is zero. The 

redefined West Area has been closed to commercial net fishing since 

1952 and commercial troll fishing since 1973, and there has not been 

any commercial yield from this area. This OY recognizes that salmon are 

fully utilized by state-managed fisheries, and that the State manages 

fisheries based on the best available information using the State's 

escapement goal management system. This OY also recognizes that non-

Alaska salmon are fully utilized and managed by their respective 

management authorities when they return to their natal regions.

    Finally, Amendment 12 adds a fishery impact statement to the FMP, 

revises the current FMP process for Federal review of State management 

measures to more fully describe the process and bring it into 

compliance with Magnuson-Stevens Act requirements (16 U.S.C. 

1856(a)(3)(B)), and removes existing FMP language governing the 

issuance of Federal salmon permits. The Council recommended removing 

FMP language related to Federal salmon permits because all current 

participants have State of Alaska limited entry permits and Federal 

permits are no longer necessary. According to language included in the 

original 1979 FMP, provisions for Federal salmon permits were 

established to complement the State limited entry permit, in order to 

limit capacity in the EEZ so that persons who did not receive a State 

limited entry permit would not simply shift their fishing efforts into 

Federal waters.

 

Final Rule

 

    While many of the provisions of Amendment 12 do not require 

implementing regulations, several provisions require modifications to 

the regulations implementing the FMP. To implement Amendment 12, this 

final rule:

     Revises Sec.  679.1(i) to reflect the new FMP title and 

clarify that the FMP governs commercial salmon fishing in the West Area 

and commercial and sport salmon fishing in the East Area.

     Revises the definition of Salmon Management Area, at Sec.  

679.2, to explicitly exclude the Cook Inlet Area, the Prince William 

Sound Area, and the Alaska Peninsula Area from the West Area.

     Revises Sec.  679.3(f) to remove references to laws that 

are no longer applicable or current, such as references to the North 

Pacific Fisheries Act of 1954.

     Removes and reserves Sec.  679.4(a)(1)(v) and (h), which 

required Federal salmon permits.

     Revises Sec.  679.7(h) to explicitly prohibit commercial 

fishing for salmon using any gear except troll gear in the East Area, 

and to explicitly prohibit commercial fishing for salmon in the West 

Area.

     Replaces Figure 23 with a new map to show the newly 

defined Salmon Management Area and the three net fishing areas excluded 

from the West Area.

    Additional information is provided in the proposed rule for 

Amendment 12 (77 FR 21716, April 11, 2012).

 

Response to Comments

 

    NMFS received 12 letters of public comment during the public 

comment periods for Amendments 10, 11, and 12 and the proposed rule to 

implement Amendment 12. NMFS summarized these letters into 47 separate 

comments, and responds to them below. All of the comments received 

addressed various provisions of Amendment 12; NMFS received no comments 

on Amendments 10 or 11, or on the specific wording of the regulatory 

text contained in the proposed rule.

    Comment 1: The redefined scope of the FMP serves to facilitate 

State management of salmon fisheries by avoiding the creation of 

duplicative Federal and State management structure in the West Area and 

reaffims that management of the commercial and sport salmon fisheries 

in the East Area is delegated to the State, in accordance with the 

Pacific Salmon Treaty and other Federal law.

    Response: NMFS acknowledges the comment.

    Comment 2: Excluding the sport fishery and three traditional 

commercial net fishing areas from the West Area and prohibiting 

commercial salmon fishing in the West Area more clearly reflects the 

Council's policy regarding State management authority over these 

fisheries and acknowledges that salmon warrant an alternative approach, 

per the National Standard 1 Guidelines, to control catch and prevent 

overfishing.

 

[[Page 75572]]

 

    Response: NMFS acknowledges the comment.

    Comment 3: The FMP revisions maintain the current management 

structure, whereby salmon fisheries are managed as a unit throughout 

their range in both the East and West Areas through the State's 

escapement-based system. Real-time monitoring and inseason management 

actions by the State help ensure that escapement goals are met and 

optimum production is achieved. The FMP revisions recognize the 

necessity of maintaining this effective and flexible management system 

for salmon.

    Response: NMFS acknowledges the comment.

    Comment 4: Reject Amendment 12 and the proposed rule because 

removing the EEZ waters of Cook Inlet from the FMP is arbitrary, 

capricious, and contrary to the Magnuson-Steven Act. This rule should 

be rejected because (1) The Magnuson-Steven Act, at 16 U.S.C. 

1801(b)(1), specifically states that anadromous species need immediate 

protection; (2) the Cook Inlet salmon fishery is currently facing 

significant management concerns; and (3) the regulated community in 

Cook Inlet has unanimously asked the Council to take action to address 

these concerns.

    Response: Amendment 12 and this final rule are consistent with the 

Magnuson-Stevens Act and are not arbitrary or capricious. NMFS does not 

agree with the comment's interpretation of this statutory provision as 

requiring immediate protection for salmon or any other fishery 

resources. The Salmon FMP is consistent with the purpose of the 

Congress in the Magnuson-Stevens Act, at 16 U.S.C. 1801(b)(1), in that 

it exercises sovereign rights for the purposes of conserving and 

managing salmon, among other fisheries, within the EEZ. The Salmon FMP 

exercises sovereign rights in managing salmon within the EEZ by closing 

the majority of the EEZ to commercial salmon fishing. In addition, 

removing the EEZ waters adjacent to Cook Inlet from the FMP to 

facilitate State management of the salmon fisheries does not interfere 

with these sovereign rights.

    Management concerns in Cook Inlet were one of the primary issues 

discussed by the Council during the development of Amendment 12 and 

analyzed in the EA prepared for this action (see ADDRESSES). The 

Council took action with full consideration of the situation in Cook 

Inlet and decided that Federal conservation and management are not 

required for the commercial salmon fishery in the Cook Inlet Area.

    NMFS and the Council received extensive public testimony during the 

development of Amendment 12 concerning dissatisfaction with State 

salmon management in Cook Inlet and the desire for a specific type of 

Federal involvement. The Council, in their deliberations on this issue, 

explained in detail why the Council determined that Federal 

conservation and management are not necessary for the commercial salmon 

fisheries that occur in the Cook Inlet Area. Further, the Council 

explained why the type of Federal involvement envisioned by some 

members of the public was not realistic or consistent with the 

Magnuson-Steven Act.

    The Council determined that (1) The State is the governmental 

entity best suited to manage salmon fisheries; (2) the salmon fisheries 

are adequately managed by the State consistent with the policies and 

standards of the Magnuson-Steven Act; and (3) Federal management of 

salmon fisheries should only occur in those areas and for those 

fisheries where Federal management serves a useful purpose. The State 

has managed the salmon fisheries since statehood in 1959, and the 

Council has relied on State management of the salmon fisheries in the 

EEZ since 1979. State salmon management is consistent with the policies 

and standards of the Magnuson-Stevens Act, as explained in EA Chapter 2 

and throughout the EA (see ADDRESSES). The State actively manages 

Alaska salmon stocks in every region of the State through its use of 

escapement-based management. Escapement-based management takes into 

consideration the unique life history of Pacific salmon and escapement 

goals maintain spawning levels that provide for maximum surplus 

production. The State has the expertise and infrastructure to manage 

Alaska salmon as a unit in consideration of all fishery removals and to 

meet escapement goals.

    The Council recognized that FMP management of directed salmon 

fisheries would only apply to the portion of the fisheries conducted in 

the EEZ, and that directed fisheries for salmon are more appropriately 

managed as a unit in consideration of all fishery removals to meet in-

river escapement goals. Under the Magnuson-Stevens Act, an FMP only has 

authority to manage the fisheries that occur in the EEZ. The Magnuson-

Stevens Act, at 16 U.S.C. 1856(a) is clear that nothing in it shall be 

construed as extending or diminishing the jurisdiction or authority of 

any state within its boundaries. Absent formal preemption in accordance 

with the Magnuson-Stevens Act (16 U.S.C. 1856(b)), the Magnuson-Stevens 

Act does not provide authority for the Council to manage fisheries in 

state waters, which would be required for the Council to change 

escapement goals or to allocate more salmon to a specific gear group or 

to direct the Alaska Board of Fisheries (Board) to make these types of 

changes.

    The Council determined that continuing to include these areas and 

the sport fishery in the FMP would not serve a useful purpose or result 

in present or future benefits that would justify the costs of 

overlapping Federal management when the State is adequately managing 

the sport fishery and the salmon fisheries that occur in the areas 

removed. The Council determined that the redefined management area in 

the West Area asserts Federal management in those areas and for those 

fisheries in which Federal management serves a useful purpose by 

allowing the State to manage Alaska salmon stocks as seamlessly as 

practicable throughout their range. Under Amendment 12, the FMP 

continues to manage the vast majority of the EEZ, and maintains the 

prohibition on commercial salmon fishing in the redefined West Area.

    Comment 5: Amend the Salmon FMP to (1) Produce management goals and 

objectives for salmon in Cook Inlet consistent with the Magnuson-Steven 

Act and the national standards; (2) delegate day-to-day management and 

implementation of those goals and objectives to the State; and (3) 

provide oversight to ensure that the State complies with those 

management goals and objectives.

    Response: The Council and NMFS declined to amend the FMP as 

requested by the comment. While a primary function of a fishery 

management plan is to specify the Council's goals and objectives for 

the fishery being managed by the plan, each plan must also include 

provisions that address all of the Magnuson-Stevens Act requirements 

for fishery management plans. The Magnuson-Stevens Act, at 16 U.S.C. 

1856(a), provides councils with the authority to establish a fishery 

management plan for a fishery that delegates management of that fishery 

to a state, but it does not exempt such a fishery management plan from 

including provisions required by the Magnuson-Stevens Act for fishery 

management plans. No North Pacific fishery management plan that 

delegates management of a fishery to the State contains only goals and 

objectives with an oversight process. See response to comment 6.

 

[[Page 75573]]

 

    Comment 6: The Council's concerns over dual Federal/State 

management for the Cook Inlet Area are irrational. There are a number 

of other fishery management plans whereby the Council sets management 

goals and objectives for the fishery and then delegates management to 

the State.

    Response: NMFS and the Council have determined that Federal 

management of the commercial salmon fisheries that occur in the Cook 

Inlet Area is not necessary, would serve no useful purpose, and would 

be costly and burdensome for managers and participants. The response to 

comment 4 provides the Council's and NMFS' reasons for this decision.

    The comment incorrectly states that there are other fishery 

management plans that only set goals and objectives and delegate 

management to the State. As explained in EA section 2.2, the Council 

has two FMPs that cooperatively manage the subject fisheries with the 

State--the Fishery Management Plan for the Bering Sea/Aleutian Islands 

King and Tanner Crabs and the Fishery Management Plan for the Scallop 

Fisheries off Alaska.

    These two fishery management plans contain much more than just 

management goals and objectives. Both plans implement Federal 

management measures, delegate specific categories of management 

measures to the State, and establish a process for delineating roles 

and responsibilities between State and Federal managers. These fishery 

management plans have provisions, either implemented by NMFS or the 

State, that address each requirement in Magnuson-Steven Act (16 U.S.C. 

1853(a)). Examples of Federal management measures included in these 

plans are Federal limited access programs, on-board observer coverage 

requirements, and mandatory vessel monitoring systems. These fishery 

management plans require extensive coordination among NMFS, Council, 

and State staffs and between the Council, NMFS, and the Alaska Board of 

Fisheries.

    Joint Federal and State management of the net fishing areas would 

also add burdens to fishery participants as management measures would 

be implemented by both Federal and State managers. This change would 

require fishery participants to attend or follow Board and Council 

processes as decisions regarding different aspects of management are 

made by these different bodies.

    Comment 7: The Council failed to consider the lack of meaningful 

opportunity for salmon industry participants and stakeholders to share 

concerns and experience in a substantive manner during the FMP review 

process.

    Response: NMFS disagrees. Under the Magnuson-Steven Act, the 

Council is responsible for developing fishery management plans, and 

stakeholders have an opportunity to express their opinions on the 

action being considered through oral and written testimony at public 

meetings that are noticed in the Federal Register. The public can also 

review and comment on analytical documents being developed by the 

Council prior to, or during, these regularly scheduled Council 

meetings. Salmon industry participants had the same meaningful 

opportunity for participation as all members of the public do for 

Council actions.

    The Council considered revisions to the FMP at five separate 

meetings that occurred over more than a year, starting with a Council 

and Board Joint Protocol Committee meeting in October 2010 (75 FR 

55743, September 14, 2010). At each regularly scheduled and noticed 

public meeting, the Council took public testimony and considered 

written and oral public comments, providing stakeholders with 

opportunities for involvement on this issue. Additionally, the Council 

conducted a special open workshop for stakeholders in September 2011 

(76 FR 52942, August 24, 2011). More than 20 members of the public, 

three Council members, Council staff, and State and Federal agency 

staff attended this workshop. Council staff presented a report from 

this workshop at the October 2011 Council meeting. The Council 

considered the comments and suggestions made during that workshop in 

developing Amendment 12.

    Comment 8: The EA fails to discuss the status or trends of the Cook 

Inlet salmon fisheries or adequately describe the population status and 

trends of the salmon stocks in Cook Inlet. The EA does not evaluate 

whether these stocks are increasing, stable, or decreasing. Without 

such a baseline, the Council cannot properly evaluate the impacts of 

its decision to completely turn over management to the State.

    Response: Contrary to the comment's assertions concerning the 

contents of the EA, the EA prepared for Amendment 12 provides detailed 

information on, and analysis of, the commercial and sport salmon 

fisheries that occur in the Cook Inlet Area and the status and trends 

of Cook Inlet salmon (see ADDRESSES).

    EA Chapter 4 contains a comprehensive discussion of how the State 

manages the Cook Inlet commercial and sport salmon fisheries that occur 

in the EEZ along with harvest and economic information. EA Chapter 4 

also contains a table showing the trends in the Cook Inlet drift 

gillnet salmon harvests compared to total Cook Inlet salmon harvests 

associated with directed commercial fisheries from 1991 through 2010.

    EA Chapter 5 contains a comprehensive discussion of the status of 

the salmon stocks in Cook Inlet, including an overview of salmon stocks 

in Cook Inlet for which escapement goals exist, a numerical description 

of the goal, type of goal, year the current goal was first implemented, 

and recent years' escapement data for each stock. It also includes 

summary statistics documenting performance in achieving escapement 

goals. In EA Chapter 5, escapements from 2002 through 2010 are compared 

against escapement goals in place at the time of enumeration to assess 

outcomes in achieving goals. Escapements for a particular stock were 

classified as ``below'' if escapement for a given year was less than 

the lower bound of the escapement goal. If escapement fell within the 

escapement goal range or was greater than a lower-bound goal, 

escapements were classified as ``met.'' Where escapements exceeded the 

upper bound of an escapement goal range, they were classified as 

``above.'' Additionally, where escapement goals or enumeration methods 

changed between 2002 and 2010 for a stock, EA Chapter 5 assesses 

outcomes by comparing escapement estimates with the escapement goals 

and methods in place at the time of the fishery.

    The Council considered this information and analysis to evaluate 

the impacts of the various alternatives under consideration by the 

Council, including Amendment 12. Based on this information, as well as 

other information in the EA and public comments received, the Council 

and NMFS concluded that Federal conservation and management are not 

necessary for the salmon fisheries in the Cook Inlet Area and approved 

Amendment 12, which maintains exclusive State management of the Cook 

Inlet Area salmon fisheries.

    Comment 9: The State is not properly managing salmon escapement in 

Cook Inlet and the EA fails to address the impacts of over-escapement. 

State management decisions allow significant harvestable surplus to go 

unutilized resulting in over-escapement. Over-escapement is 

particularly damaging to sockeye, which utilize lakes as part of their 

life cycle. Every over-escapement event results in (1) lost yield in 

the year of over-escapement (because the harvestable surplus escaped), 

and (2)

 

[[Page 75574]]

 

additional lost yields three to five years later, when the impacted 

juveniles return in diminished numbers. Given the State's current track 

record of escapement exceeding the high end of the escapement goals as 

much as 35 percent of the time, and its practice of setting escapement 

goals that are already well above MSY, the impact of continuing to 

defer to the State must be considered.

    Response: The Council and NMFS determined, based on the information 

and analysis provided in the EA, that the State is properly managing 

salmon escapement in Cook Inlet. First, the EA does assess the impacts 

of continuing State salmon management, which includes the escapement 

goals established by the State, instances when escapement goals are 

exceeded, and the effects of over-escapement on salmon stocks. As 

detailed in EA sections 3.2, 4.1, and 5.1, where possible, the State 

sets salmon escapement goals in Cook Inlet based on MSY. For instance, 

the current escapement goals for sockeye salmon in the Kenai and 

Kasilof rivers are set at approximately 90 to 100 percent of MSY.

    It is not possible to manage mixed stock salmon fisheries for MSY 

on all stocks and species in circumstances where the composition, 

abundance, and productivity of stocks and species in those fisheries 

varies substantially. Over-escapement is a common occurrence in areas 

with salmon fisheries in the EEZ, as shown in the EA section 5.1.2. 

Over-escapement means that the number of spawning salmon exceeds the 

upper bound of the escapement goal range established for any particular 

system. Over-escapement usually results from (1) A lack of fishing 

effort, (2) unexpectedly large salmon runs, or (3) management or 

economic constraints on the fishery. Management constraints result, in 

part, from State management of salmon fisheries for maximum harvest of 

the largest, most productive salmon stocks, while protecting less 

abundant salmon stocks and species. Currently, the State considers a 

number of salmon stocks in Upper Cook Inlet as stocks of concern. The 

State has established clearly-defined goals to manage salmon to provide 

for escapement of identified stocks of concern within mixed-stock 

fisheries (see the description of the State's Policy for the Management 

of Mixed Stock Salmon Fisheries (5AAC 39.220) in EA section 4.1). 

Layering Federal management on top of State management for the 

commercial fisheries in the Cook Inlet Area would not reduce the 

potential for over-escapement or address any of the factors that cause 

over-escapement. As discussed in EA section 2.2, Federal management of 

the fishery in the Cook Inlet Area would be responsive to State 

management decisions. In response to this comment, NMFS has revised the 

EA section 5.1 to expand the discussion on over-escapement to better 

explain the issue.

    Comment 10: The State has no escapement goals or estimates of MSY 

for many salmon runs in Cook Inlet. Without escapement goals, the State 

has no idea of the health of the salmon returns or whether they are 

being managed in a manner consistent with either the Magnuson-Stevens 

Act or the State's sustainable salmon policy.

    Response: According to the State, they do not have the necessary 

resources to monitor all the salmon runs in Cook Inlet. Therefore, the 

State does not have the information necessary to set escapement goals 

or estimate MSY for many of the salmon runs. However, the State (in 

conjunction with salmon resource users) has identified the most 

important species and runs, and has tried to monitor those salmon runs. 

Currently, the State monitors the largest runs of sockeye and Chinook 

salmon in Cook Inlet. Even though the State does not monitor some of 

the smaller stocks of sockeye, Chinook, pink, chum, and coho, the State 

has other information (catch and test fish indices) to indirectly 

monitor the abundance on some of these species. The State manages all 

the salmon stocks in Upper Cook Inlet based on the information it 

collects from indicator stocks (stocks that can be assessed) and the 

performance of salmon fisheries in Upper Cook Inlet. In the absence of 

specific stock information, the State has managed these stocks 

conservatively following the precautionary principle, similar to the 

National Standard 1 Guidelines for dealing with data poor stocks (50 

CFR 600.10). Therefore, in the absence of information, the State is 

managing the data-poor salmon runs consistently with the Magnuson-

Steven Act and consistently with the way NMFS manages data-poor fish 

stocks.

    Continuing to include the Cook Inlet Area in the FMP would not 

necessarily improve the scientific information available for individual 

salmon runs. NMFS does not independently monitor returns of Cook Inlet 

salmon stocks or assess Cook Inlet salmon abundance. The biology of 

salmon is such that escapement is the point in the species life history 

best suited to routine assessment and long-term monitoring. The State 

collects information on Cook Inlet salmon escapement--returns of 

specific salmon stocks to specific river systems--from sampling sites 

(e.g., weirs, sonar stations, counting towers) that are located within 

State waters and NMFS relies on this information. It is not possible to 

collect information on escapement or run strength from sampling in the 

EEZ. Given that the Magnuson-Stevens Act does not provide NMFS with the 

authority to manage salmon resources within State waters, absent 

preemption in accordance with the Magnuson-Stevens Act (16 U.S.C. 

1856(b)), and extensive information is already collected by the State 

on numerous salmon stocks, NMFS would have limited ability to 

independently collect escapement information.

    Additionally, NMFS, like the State, has limited funds for stocks 

assessment research. NMFS allocates research funds based on national 

and regional priorities, and would need to eliminate or reduce an 

existing project to start a new project to gather the scientific 

information necessary to conduct a stock assessment for any given 

salmon run.

    Comment 11: The State's sustained yield principle is not the same 

as the Magnuson-Stevens Act's OY; therefore it is not consistent with 

National Standard 1.

    Response: For the following reasons, the Council and NMFS 

determined that the State's sustained yield principle is equivalent to 

the Magnuson-Stevens Act's OY and that it achieves the objectives of 

National Standard 1 (16 U.S.C. 1851(a)(1)). The Magnuson-Stevens Act 

defines OY as the amount of fish which:

    (A) 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;

    (B) 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

    (C) in the case of an overfished fishery, provides for rebuilding 

to a level consistent with producing the maximum sustainable yield in 

such fishery.

    The Magnuson-Stevens Act does not prescribe the method for 

determining OY and NMFS uses various methods to determine OY throughout 

the Nation, depending on the information available and the unique 

characteristics of specific fisheries. For Alaska salmon, the Council 

and NMFS determined that the State's sustained yield principle is 

equivalent to OY because it represents MSY as reduced by relevant 

economic, social, and ecological factors.

 

[[Page 75575]]

 

    The Council determined that the State's salmon escapement goal 

management is the appropriate approach for satisfying the National 

Standard 1 requirements of the Magnuson-Stevens Act. The biology of 

salmon is such that escapement is the point in the species life history 

best suited to routine assessment and long-term monitoring and is the 

metric most commonly used for assessing the status of salmon stocks. 

The State establishes escapement goals intended to maximize surplus 

productivity of future runs, estimates run strength in advance, 

monitors actual run strength and escapement during the fishery, and 

utilizes in-season management measures, including fishery closures, to 

ensure that minimum escapement goals are achieved.

    The State sets salmon escapement goals based on the Policy for the 

Management of Sustainable Salmon Fisheries (SSFP; 5 AAC 39222) and the 

Policy for Statewide Salmon Escapement Goals (5 AAC 39.223). These 

policies ensure that the State's salmon stocks are conserved, managed, 

and developed using the sustained yield principle. These policies 

require the State to set escapement goals based on the sustained yield 

principle. The SSFP goes on to identify escapement goals based on MSY 

as biological escapement goals and those based on sustained yield as 

sustainable escapement goals. The State set sustainable escapement 

goals in the absence of adequate escapement and/or stock specific catch 

information to set a biological escapement goals and when the State is 

unable to determine what level of escapement would produce MSY.

    Comment 12: The State is not managing the Cook Inlet salmon fishery 

in a manner consistent with the Magnuson-Stevens Act's National 

Standards. Therefore, the Council and NMFS cannot facilitate State 

salmon management in accordance with the Magnuson-Stevens Act and 

should not remove the Cook Inlet Area from the FMP. The Council failed 

to consider the consequences of removing the ten National Standards 

from Cook Inlet Area salmon management and how that will impact 

sustainability of salmon returns over time.

    Response: As explained in EA sections 4.3.1 and 5.1, the Council 

and NMFS assessed the State's current salmon management and the 

sustainability of salmon returns under the current management 

procedures, and determined that current management, as codified in the 

Alaska constitution, laws, regulations, and policies, is consistent 

with the Magnuson-Stevens Act's national standards. For this and other 

reasons explained in this preamble and the EA, the Council and NMFS 

concluded that Federal conservation and management are not required and 

would not serve a useful purpose.

    Comment 13: The State fails to meet National Standard 2 (best 

available science) because the Alaska Board of Fisheries (Board) 

process is based on the ``best available politics,'' is ad hoc, and 

fails to consider the scientific, economic, and social ramifications of 

the Board's actions. The Council failed to consider that the current 

State regulatory system allows for in-season salmon management 

decisions to be regularly influenced by a few politically connected 

individuals despite professional biologists recommendations or 

direction.

    Response: NMFS disagrees. The Board decision-making process 

achieves the objectives of National Standard 2. The Board is 

responsible for (1) Considering and adopting regulations through a 

public process to conserve and allocate fisheries resources to various 

user groups, (2) establishing fish reserves and conservation areas, 

fishing seasons, quotas, bag limits and size restrictions, (3) 

protecting habitat, (4) recommending stock enhancement, and (5) 

developing commercial, subsistence, sport and personal use fisheries. 

The Board consists of seven members who are appointed by the Alaska 

Governor and confirmed by the State Legislature. Members are appointed 

on the basis of interest in public affairs, good judgment, knowledge, 

and ability in the field of action of the Board, with a view to 

providing diversity of interest and points of view in the membership 

(see Alaska Statute 16.05.221).

    As with the Federal regional management council system, the Board 

considers and weighs all of the information available to it in making 

its decisions. In fulfilling its responsibilities, the Board process 

utilizes the best science available to it--primarily provided by 

ADF&G--and considers the economic and social ramifications of the 

Board's actions. Through its process, the Board considers and applies 

allocative criteria (AS 16.05.251(e), 5 AA 39.205, 5 AAC 75.017, 5 AAC 

77.007, and Board Finding 91-129-FB), the Policy for the 

Management of Sustainable Salmon Fisheries (5 AAC 39.222), the Policy 

for the Management of Mixed Stock Salmon Fisheries (5 AAC 39.220), and 

information provided to it by the Alaska Commercial Fisheries Entry 

Commission and Alaska Department of Commerce, Community, and Economic 

Development, ADF&G's economic research, and any information provided by 

members of the public.

    The Council and NMFS considered the State's inseason salmon 

management process and decisions, as described in EA Chapter 4. The 

comment did not provide any evidence to support the assertion that the 

State's inseason management decisions are influenced by a few 

politically connected individuals despite professional biologists' 

recommendations or direction.

    Comment 14: The Council's analysis under National Standard 7 is 

legally and factually flawed. Each factor of the National Standard 7 

Guidelines weighs heavily in favor of developing an FMP for Cook Inlet.

    Response: Amendment 12 is consistent with National Standard 7, as 

explained in EA section 2.5.1. While the commenter may not agree with 

the Council's and NMFS' decision, the analysis is not legally or 

factually flawed. National Standard 7 states that conservation and 

management measures shall, where practicable, minimize costs and avoid 

unnecessary duplication. NMFS' National Standard 7 Guidelines provide 

the criteria for deciding whether a fishery needs management under an 

FMP (50 CFR 600.340). The Guidelines state that the principle that not 

every fishery needs management through regulations implementing an FMP 

is implicit in National Standard 7. The Guidelines also state that 

Councils should prepare FMPs only for overfished fisheries and for 

other fisheries where regulation would serve some useful purpose and 

where the present or future benefits of regulation would justify the 

costs.

    The National Standard 7 Guidelines provide seven general factors 

that should be considered, among others, in deciding whether a fishery 

needs management through regulations implementing an FMP. EA section 

2.5.1 compares how each alternative addresses each National Standard 7 

factor. Each factor and the Council's and NMFS' determinations for 

Amendment 12 are summarized as follows--

    (1) The importance of the fishery to the Nation and to the regional 

economy. The Council and NMFS determined that Amendment 12 will not 

change the importance of the salmon fishery in the regional economy of 

Cook Inlet or for the Nation because the State will remain as the 

primary manager of the fishery, and the vast majority of the EEZ will 

remain closed to commercial salmon fishing. EA section 4.5.2 provides 

detailed information on the economic

 

[[Page 75576]]

 

importance of the Cook Inlet salmon fishery in the EEZ.

    (2) The condition of the stock or stocks of fish and whether an FMP 

can improve or maintain that condition. The Council and NMFS determined 

an FMP would not improve or maintain the condition of the salmon stocks 

in the Cook Inlet Area. Including the Cook Inlet Area in the FMP would 

not improve the condition of salmon stocks since the FMP could not 

control harvests in state waters or ensure escapement goals are met. 

The Council and NMFS recognized that the State is in a unique position 

to manage Alaska salmon as a unit in consideration of all fishery 

removals and to meet escapement goals. The condition of each salmon 

stock is a result of many factors, including harvest by a number of 

fisheries that target salmon throughout their range. EA section 5.1 

describes the condition of the Cook Inlet salmon stocks.

    (3) The extent to which the fishery could be or is already 

adequately managed by states, by state/federal programs, by federal 

regulations pursuant to FMPs or international commissions, or by 

industry self-regulation, consistent with the policies and standards of 

the Magnuson-Stevens Act. The State has managed the salmon fisheries 

since statehood in 1959 and the Council and NMFS have relied on State 

management of the salmon fisheries in the EEZ since 1979. As such, the 

Council and NMFS have determined that salmon fisheries are adequately 

managed by the State; therefore, the Council and NMFS only considered 

the role of federal management given existing State management. The 

Council and NMFS have determined that State salmon management is 

consistent with the policies and standards of the Magnuson-Stevens Act, 

as explained throughout the EA.

    (4) The need to resolve competing interests and conflicts among 

user groups and whether an FMP can further that resolution. Competing 

interests and conflicts exist among user groups that harvest salmon 

throughout its range, as explained in EA Chapter 4. The Council and 

NMFS determined that including the Cook Inlet Area in the FMP would not 

further the resolution of the State's difficult task of allocating 

salmon to the multiple user groups--subsistence, sport, personal use, 

and different commercial gear types--that harvest salmon from EEZ 

waters through to headwaters of Alaska streams and rivers. Amendment 12 

actually minimizes potential conflicts by prohibiting commercial salmon 

fishing in the vast majority of the EEZ to allow salmon to return to 

their natal region and be available for harvest by various user groups 

in those areas.

    (5) The economic condition of a fishery and whether an FMP can 

produce more efficient utilization. The Council and NMFS recognized 

that the economic conditions of the fishery and the efficiency of the 

utilization are closely tied to State salmon management. The Council 

and NMFS determined that including the Cook Inlet Area in the FMP would 

not change the economic conditions of these fisheries or change the 

efficiency of the utilization of salmon resources. EA section 4.5.2 

describes the economic conditions of the FMP salmon fisheries in the 

Cook Inlet Area.

    (6) The needs of a developing fishery, and whether an FMP can 

foster orderly growth. The Council and NMFS determined that Amendment 

12 fosters orderly growth of salmon fishing in the Cook Inlet Area and 

other natal regions, by predominantly closing EEZ waters.

    (7) The costs associated with an FMP, balanced against the 

benefits. Neither the Council nor NMFS identified any benefits of an 

additional layer of federal management on top of State salmon 

management for the fisheries in the Cook Inlet Area. The Council and 

NMFS determined that applying federal management would be costly, 

redundant, and not provide any conservation or management benefits. As 

discussed in EA Chapter 5, an FMP in the Cook Inlet Area would not 

further NMFS' obligations under the Marine Mammal Protection Act or 

Endangered Species Act, or to Essential Fish Habitat, and therefore is 

not beneficial from the perspective of other marine resources. An FMP 

would not benefit the condition of salmon stocks in these areas, as 

discussed above. While there is the perception that an FMP could 

benefit certain salmon fishermen in the Cook Inlet Area relative to 

other salmon user groups, that perception is not supported by current 

federal management practices.

    The Council and NMFS determined that the EA's analysis of the 

factors to be considered in the National Standard 7 guidelines support 

the decision to redefine the FMP's fishery management unit to exclude 

the net fishing areas where salmon fisheries are already adequately 

managed by the State. This decision minimizes the costs associated with 

creating Federal management and layering Federal management on top of 

existing State management and avoids unnecessary duplication with 

existing State management.

    Comment 15: Amendment 12 is directly contrary to National Standard 

3. Federal abdication of salmon fishery management in those areas of 

the EEZ that are removed from the FMP under Amendment 12 does not 

create seamless management. Vessels registered with the State would be 

subject to State regulations when fishing in those areas; vessels not 

registered with the State would be unregulated when fishing in those 

areas. Additionally, the Federal government would still have management 

authority over salmon subsistence harvest in Federal inland waters and 

for managing salmon subject to international treaties.

    Response: The Council and NMFS determined that Amendment 12 is 

consistent with National Standard 3, as explained in EA section 2.5.1. 

National Standard 3 states 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 (16 U.S.C. 1851(a)(3)). National Standard 3 

guidelines explain how to structure appropriate management units for 

stocks and stock complexes (Sec.  600.320). The Guidelines state that 

the purpose of the standard 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)).

    The Council and NMFS determined that prohibiting commercial fishing 

in the redefined West Area and removing the net fishing areas and the 

sport fishery in the West Area from the scope of the FMP would best 

enable the State to manage salmon as a unit throughout their range. 

This approach recognizes that the biology of salmon is such that 

escapement is the point in the species' life history that is most 

appropriate for assessing stock status, and that escapement happens in 

the river systems, not in the EEZ waters. The State manages for all 

sources of fishing mortality, from the commercial fisheries in the EEZ 

to the in-river subsistence fisheries. The State monitors actual run 

strength and escapement during the fishery, and utilizes in-season 

management measures, including fishery closures, to ensure that minimum 

escapement goals are achieved. National Standard 3 guidelines provide 

councils and NMFS with discretion to determine the appropriate 

management unit for a stock

 

[[Page 75577]]

 

or stock complex under an FMP and clearly contemplate that the selected 

management unit may not encompass all Federal waters if, such as here, 

complementary management exists for a separate geographic area (Sec.  

600.320(e)(2)).

    Additionally, managing a stock as a unit, consistent with National 

Standard 3, does not require exclusive management by a single 

governmental entity throughout the stock's entire range. The fact that 

the U.S. Fish and Wildlife Service manages subsistence salmon fishing 

on Federal lands, or that the Convention for the Conservation of 

Anadromous Stocks in the North Pacific Ocean defines management 

authority for salmon in international waters beyond the U.S. EEZ, does 

not constrain or otherwise limit the Council's and NMFS' ability to 

determine if Federal conservation and management are necessary for the 

commercial and sport salmon fisheries that occur in Federal waters 

adjacent to Cook Inlet.

    The Council, NMFS, and the State recognized that removing the net 

fishing areas from the FMP could create an opportunity for unregulated 

commercial salmon fishing activity by U.S. vessels in those areas. The 

Council and NMFS assessed this risk and concluded that unregulated 

fishing is unlikely due to the risk and limitations associated with a 

business plan dependent on fishing relatively small pockets of salmon 

fishing grounds separated by substantial distance, avoiding entry into 

state waters under any circumstance, and shedding all state permits and 

licenses. Responses to comments 16 through 20 address this point with 

additional detail. The Council and NMFS determined that removing the 

net fishing areas from the FMP does not pose a risk to the overall 

conservation or management of salmon resources within these areas.

    Comment 16: Amendment 12 has the ability to change the importance 

of the commercial fisheries in their regional economies or for the 

Nation because it (a) opens the EEZ to unregulated fishing that will 

draw resources away from permit holders, local processors, and the 

regional community, and (b) the current problems associated with State 

management in Cook Inlet will continue to erode the importance of these 

fisheries.

    Response: NMFS disagrees. Amendment 12 does not open the EEZ to 

unregulated fishing. Fishing for salmon in the vast majority of the EEZ 

will continue to be regulated under the FMP. The Council and NMFS 

expect that all vessels fishing for salmon in the net fishing areas 

will be regulated by the State. In recommending and approving Amendment 

12, the Council and NMFS considered the risks associated with removing 

the net fishing areas from the FMP and determined that the risk of 

unregulated fishing in these areas is negligible. As explained in EA 

section 2.5.2, a vessel not registered with the State may be able to 

circumvent the application of State regulations within the net fishing 

areas if the vessel never enters State waters and has no contacts with 

the State. While this scenario is possible, the practical constraints 

on such a scenario make it unlikely to occur. First, the net fishing 

areas are in remote locations, far from any port other than an Alaskan 

port. A large vessel would likely be required for such fishing because 

it would have to carry onboard everything it would need for the entire 

fishing trip to avoid entry into State waters under any circumstance. 

According to the State, if a vessel involved in unregulated fishing 

entered State waters for fuel, supplies, or a mechanical or medical 

emergency, the vessel would be subject to State enforcement--greatly 

increasing the risk of failure for such a business plan. Additionally, 

a large vessel that had to prepare for any contingency would have high 

operating costs, but the net fishing areas are relatively small pockets 

of salmon fishing grounds that may not provide the return needed to 

cover such costs. Finally, such a vessel would have to shed all State 

permits and licenses.

    As explained in EA section 2.5.2, inherent in the Council's 

recommendation and NMFS' approval of Amendment 12 is the conclusion 

that commercial and sport salmon fishermen will be registered with the 

State when fishing for salmon in these areas, and subject to the laws 

of the State governing commercial and sport salmon fishing. Based on 

the logistical complications and business risks identified in the EA 

and summarized above, it is reasonable to expect that salmon fishing 

occurring in the net fishing areas will be by vessels registered with 

the State and that fishing in these areas will be regulated by the 

State. Removal of these areas from the FMP does not indicate the 

Council's or NMFS' intent for unregulated salmon fishing to occur in 

these areas.

    Based on available information, NMFS does not agree with the 

conclusion that current State management erodes the importance of the 

salmon fisheries in regional economies or for the Nation. See response 

to comment 23 on the performance of the 2011 commercial fishery in the 

Cook Inlet Area.

    Comment 17: Amendment 12 creates a jurisdictional loophole for 

unregulated fishing in the EEZ. Neither the State nor NMFS has any 

mechanism in place to deal with this unregulated fishing by vessels not 

registered with the State, instead relying on hope that no one will 

exploit this attractive option. The EA underestimates the potential 

harm that could result from unregulated fishing in the EEZ. The only 

available solution, closing the EEZ waters, would further harm existing 

permit holders.

    Response: The response to comment 16 explains why the Council and 

NMFS determined that unregulated fishing in the net fishing areas is 

unlikely to occur. Given the significant risks and practical 

limitations associated with any attempt to conduct unregulated fishing 

in the net fishing areas, the Council and NMFS reasonably concluded 

that such activity is unlikely to occur and the EA adequately analyzes 

the potential harm.

    If unregulated fishing does occur, the Council and NMFS could take 

action under the Magnuson-Stevens Act to regulate salmon fishing in the 

net fishing areas. While it is difficult to predict what action would 

be taken, it is likely that the action taken would be tailored to the 

extent and severity of the problem identified. One action could be to 

assert Federal management over the net fishing areas and close the 

areas to fishing while the Council develops a long-term solution. As 

both the commenter and EA section 2.5.2 note, closing the net fishing 

areas would impose costs on all operations utilizing these salmon 

fishing areas, including the State-regulated participants operating in 

these areas.

    Comment 18: The Council should not rely on the State's assurances 

that they can prosecute a vessel not registered with the State for 

salmon fishing in the EEZ to understand the risks of removing Cook 

Inlet waters from the FMP.

    Response: The Council and NMFS did not rely on assurances of 

successful prosecutions by the State as their basis for assessing the 

risk of unregulated fishing in the net fishing areas. The Council and 

NMFS relied on information that demonstrates the significant challenges 

associated with any attempt to successfully conduct unregulated fishing 

in the net fishing areas. The practical limitations identified in the 

EA indicate that unregulated fishing in the net fishing areas is 

unlikely to occur. The EA does not indicate that unregulated fishing is 

likely to occur, but can be successfully prosecuted by the State.

    As explained in the response to comment 16, EA section 2.5.2 

contained information on the risk of unregulated

 

[[Page 75578]]

 

fishing in the net fishing areas if they are removed from the FMP. The 

Council and NMFS reviewed this information, considered the geographic 

scope of the EEZ accessible by vessels not registered by the State, the 

inherent risks of fishing countered by the inability of such vessels to 

enter Alaskan ports, the potential amount of salmon fishery resources 

that may be accessible to make such an endeavor profitable, and the 

need to shed all State permits and licenses. Based on this information, 

the Council and NMFS concluded that there was a negligible risk that 

unregistered vessels would prosecute a directed salmon fishery within 

this limited area, and that this negligible level of risk did not 

warrant retaining the net fishing areas in the FMP.

    Comment 19: Removing these areas from the FMP opens the door to 

unregulated fishing by vessels not registered in the State of Alaska. 

Should unregulated fishing occur, NMFS will be unable to implement 

emergency measures to regulate commercial fishing in these areas, 

because this scenario has been publicly debated and considered by the 

Council. Likely, any amendment that opens the door to unregulated 

fishing would be found inconsistent with the Magnuson-Stevens Act, and 

would be sent back for review by a Federal court.

    Response: The response to comment 16 explains why the Council and 

NMFS determined that unregulated fishing in the net fishing areas is 

unlikely to occur and why Amendment 12 does not open the door to 

unregulated fishing in the net fishing areas.

    As explained in the response to comment 17, in the unlikely event 

that unregulated fishing does occur in the net fishing areas, the 

Council and NMFS could take action under the Magnuson-Stevens Act to 

regulate salmon fishing in these areas. However, in order to take 

emergency action under the Magnuson-Stevens Act (16 U.S.C. 1855(c)), 

the Council must find that an emergency exists. NMFS guidelines provide 

that an emergency is a situation that: (1) Results from recent, 

unforeseen events or recently discovered circumstances; (2) presents 

serious conservation or management problems in the fishery; and (3) can 

be addressed through emergency regulations for which the immediate 

benefits outweigh the value of advanced notice, public comment, and 

deliberative consideration of the impacts on participants to the same 

extent as would be expected under the normal rulemaking process (62 FR 

44421, August 21, 1997).

    The commenter concludes that because the risk of unregulated 

fishing in the net fishing areas has been publicly debated and 

considered by the Council, unregulated fishing would not meet the 

emergency criterion that an event be unforeseen. It is premature to 

determine whether unregulated fishing in the net fishing areas would or 

would not meet the emergency criteria. However, as explained in the 

response to comment 18, the Council and NMFS have determined, based on 

the best information available, that unregulated fishing is unlikely to 

occur. If unregulated fishing does occur, an argument may exist that it 

was unforeseen. If the best information available had indicated that 

unregulated fishing in the net fishing areas was likely and the Council 

still chose to remove these areas from the FMP, it would be more 

difficult to conclude that future unregulated fishing in the net 

fishing areas is an unforeseen event.

    Comment 20: The Council has no legal authority to carve out part of 

the EEZ from the scope of its jurisdiction or to develop an FMP for 

only a certain geographic range of a stock.

    Response: Amendment 12 does not remove the net fishing areas from 

the Council's jurisdiction under the Magnuson-Stevens Act. The Council 

continues to have authority over the fisheries in the Arctic Ocean, 

Bering Sea, and Pacific Ocean seaward of Alaska (16 U.S.C. 

1852(a)(1)(G)). In adopting Amendment 12, the Council chose not to 

exercise this authority for salmon fisheries occurring in the net 

fishing areas. The Magnuson-Stevens Act provides the Council with broad 

discretion in determining whether a fishery is in need of conservation 

and management. As explained in the response to comment 15, National 

Standard 3 guidelines provide councils and NMFS with discretion to 

determine the appropriate management unit for a stock or stock complex 

under an FMP and clearly contemplate that the selected management unit 

may not encompass all Federal waters if complementary management exists 

for a separate geographic area (50 CFR 600.320). Additionally, National 

Standard 7 guidelines provide the criteria for determining whether a 

fishery needs management and state that councils should prepare FMPs 

only for fisheries where regulation would serve some useful purpose and 

where present or future benefits of regulation would justify the costs 

(50 CFR 600.340). Under the Magnuson-Stevens Act and National Standards 

3 and 7, the Council has the authority to develop an FMP that includes 

a geographic management unit for a fishery that is less than the entire 

EEZ if the Council can provide a reasonable explanation as to why that 

management unit is the appropriate management unit. The Council's 

rationale for Amendment 12 is provided throughout this preamble and in 

the EA prepared for Amendment 12.

    Comment 21: Having an FMP with clearly defined management 

objectives, operating in a transparent process with Secretarial 

oversight of the Board, would lessen the user group conflicts in Cook 

Inlet. While the FMP would only apply to EEZ waters, it would have to 

consider all salmon removals and would provide a forum to ensure that 

the State manages salmon resources in a manner consistent with the 

Magnuson-Stevens Act.

    Response: NMFS does not share the commenter's opinion that FMP 

management of the Cook Inlet Area would reduce the user group conflicts 

in Cook Inlet. Conflicts among different user groups exist in federally 

managed fisheries, as well. Federal management may change the forum for 

user group conflicts in Cook Inlet from the Board to the Council, but 

would not, in and of itself, lessen the conflicts inherent in the 

difficult task of allocating salmon, a finite resource, to the multiple 

user groups--subsistence, sport, personal use, and different commercial 

gear types--that harvest Cook Inlet salmon from EEZ waters through to 

the headwaters of Alaska streams and rivers. Amendment 12 limits user 

group conflicts by prohibiting commercial salmon fishing in the West 

Area, which encompasses the vast majority of the EEZ. The prohibition 

enables salmon from different regions to return to their natal region 

and be available for harvest by various user groups in those areas. 

Again, this position recognizes that salmon are best harvested 

relatively nearshore, where competing interests and conflicts among 

user groups can be resolved by the government entity with management 

authority to regulate harvest by all the user groups. The Fishery 

Impact Statement in EA Chapter 4 describes the multiple salmon 

fisheries managed by the State. Federal fishery management under the 

FMP would only apply in the EEZ, where the commercial fishery is the 

predominant user group. The FMP would have no authority over the 

harvest of salmon within State waters by various other user groups, but 

would have to account for removals within State waters in determining 

the appropriate level of harvest in Federal waters.

    The Council and NMFS determined that the State has clearly defined 

management objectives for Cook Inlet salmon and that its management 

process is transparent. In approving

 

[[Page 75579]]

 

Amendment 12, the Council and NMFS determined that Secretarial 

oversight of the Board is not necessary for the conservation and 

management of salmon in the net fishing areas.

    Comment 22: The EA fails to address the impacts on salmon resources 

caused by the unrestricted growth of personal use fisheries on the 

Kenai River. A significant percentage of salmon released by personal 

use fishermen do not survive to spawn and represent unaccounted-for 

removals. This practice is reasonably likely to continue and must be 

considered in the EA.

    Response: Contrary to the commenter's assertion, the EA does 

examine the impacts on salmon caused by all salmon fisheries, including 

the personal use fishery in Cook Inlet. The personal use fishery is a 

consumptive use fishery, which means people harvest salmon for food and 

not for recreation or sport. It occurs entirely within State waters and 

is managed by the State. Generally, fish may be taken for personal use 

purposes only under the authority of a permit issued by ADF&G. ADF&G 

limits the amount and type of gear that can be used to reduce the 

likelihood that Chinook salmon will be gilled and sustain mortal 

injuries. Given that the personal use fishery is for food, it is 

unlikely that any Chinook salmon caught are released in the Kenai River 

personal use fishery. The contention that personal use fishermen 

release Chinook salmon that have been gilled is unfounded.

    The Kenai River personal use fishery has grown as the population of 

Anchorage, the Matanuska-Susitna Valley, and surrounding areas has 

grown. ADF&G estimates that the annual average harvest of Chinook 

salmon in the Kenai River dip net fishery was 816 for the years 1996 

through 2011, and 1,200 for the more recent years 2006 through 2011. 

The annual average number of Upper Cook Inlet personal use salmon 

fishery permits fished was 17,748 permits for the years 1996 through 

2011, and 22,423 permits for the more recent years 2006 through 2011. 

Each holder of an Upper Cook Inlet personal use salmon fishery permit 

is allowed to harvest one Chinook salmon, so the potential harvest is 

much greater than what is actually being taken.

    The EA considers the harvest of salmon that occurs in all salmon 

fisheries, including commercial, personal use, sport, and subsistence 

fisheries. In the cumulative effects analysis, the EA explains that the 

State's first priority for management is to meet spawning escapement 

goals to sustain salmon resources for future generations. The State 

carefully monitors the status of salmon stocks returning to Alaska 

streams and controls fishing pressure on these stocks. Subsistence use 

is the highest priority use under both State and Federal law. Surplus 

fish, or fish in excess of the fish needed for escapement and 

subsistence use, are made available for other uses, such as commercial 

and sport harvests. The Board allocates surplus fish among user groups 

according to Board policy and applicable State law, as described in the 

Fishery Impact Statement (EA Chapter 4). The EA recognizes that other 

salmon fisheries have the most substantial impacts on the salmon 

fisheries that occur in the EEZ because the State comprehensively 

manages salmon stocks and considers each fishery that targets specific 

stocks or stock groupings.

    Comment 23: Having an FMP for the Cook Inlet Area would help assess 

and halt current trends towards diminishing harvests by providing clear 

management goals and objectives and restoring science-based management 

to the fishery.

    Response: Salmon returns are cyclical and harvest data do not 

support the conclusion that there is a trend towards diminishing 

harvests. Salmon that return to Cook Inlet are subject to harvest by 

numerous commercial and non-commercial fisheries in marine waters and 

harvest by subsistence, sport, and personal use fishermen in rivers and 

streams. While the non-commercial fisheries have grown over time as the 

population of southcentral Alaska has grown, the claim that this growth 

has disadvantaged the commercial sector is not supported by available 

information. The 2010 estimate for commercial salmon fishery gross 

earnings was well above average, and only exceeded by the earnings 

reported in 1992, 1993, and 1994. The 2011 commercial harvest of 5.3 

million salmon ranks as the fourth largest overall harvest in the past 

20 years. The commercial ex-vessel value of approximately $51.6 million 

was the fifth highest value since 1960, and represented the highest ex-

vessel value since 1992.

    In 2011, the bulk of the sockeye salmon run came in compacted and 

above forecast. Compact runs are, in general, very difficult to manage. 

The 2011 sockeye salmon run was dynamic in that the run materialized in 

days, not weeks. Catch per unit effort went from a near historic low on 

July 9 to just below a near record high in 5 days, and the record 

harvests soon after. Processors limited deliveries for a period of time 

until they were able to catch up with processing all of the salmon 

harvested.

    Even if the FMP included the Cook Inlet Area, the FMP would be 

limited to allocating the harvestable surplus of salmon among users 

within the EEZ. As explained in EA section 2.2, under the Magnuson-

Stevens Act, an FMP only has authority to manage the fisheries that 

occur in the EEZ. The Magnuson-Stevens Act is clear that nothing in it 

shall be construed as extending or diminishing the jurisdiction or 

authority of any state within its boundaries. Absent formal preemption 

in accordance with Magnuson-Stevens Act (16 U.S.C. 1856(b)), the 

Magnuson-Stevens Act does not provide authority for the Council to 

manage fisheries in state waters, which would be required for the 

Council to change escapement goals or to allocate more salmon to a 

specific user group, or to direct the Board to make these types of 

changes.

    In other instances where a fishery occurs in both state and Federal 

waters, Federal management of the Federal portion of the fishery is 

responsive to state management of the portion in state waters. An 

example of this occurs in the Pacific cod fisheries in the Gulf of 

Alaska and Aleutian Islands. The Federal Pacific cod total allowable 

catch is reduced to account for the State guideline harvest level so 

that total catch does not exceed the Pacific cod annual catch limit.

    Comment 24: The State's erratic management decisions in Cook Inlet 

have made Cook Inlet a difficult commercial environment. Federal 

oversight with a stable FMP and management objectives could return a 

sense of order and predictability to the fishery.

    Response: The Council and NMFS are aware of user group conflicts in 

the Cook Inlet salmon fisheries. However, NMFS does not share the 

commenter's opinion that FMP management of the Cook Inlet Area would 

reduce the user group conflicts or create the order and predictability 

the commenter seeks. The comment provides no examples for the type of 

Federal oversight that would change the commercial environment. As 

explained in the response to comment 23, the Council's and NMFS' 

authority to change State management of salmon fisheries within State 

waters is limited. While the complexities associated with salmon 

management and fluctuations in salmon abundance can make it difficult 

to create a stable and predictable commercial environment, the response 

to comment 23 demonstrates that commercial salmon fisheries in Cook 

Inlet continue to have successful seasons.

 

[[Page 75580]]

 

    Comment 25: The Council claims the salmon fisheries in the EEZ are 

fully developed. However, there is a hugely underutilized chum and pink 

fishery in Cook Inlet. The State has been largely unwilling to allow 

the harvest of these fish. An FMP could help develop these fisheries in 

a manner consistent with the national standards.

    Response: As explained in EA section 5.1, the State does not fully 

utilize pink and chum salmon in Upper Cook Inlet, in part, due to the 

State's efforts to conserve coho salmon and to provide for sport 

fisheries on coho salmon. Coho salmon are caught in the commercial 

fisheries directed at pink and chum salmon. Coho salmon are important 

to sport fishermen in Cook Inlet. Consideration of sport fishing 

opportunities is consistent with National Standard 1. It would be 

difficult to harvest additional pink and chum salmon without harvesting 

additional coho salmon that have been allocated to sport fisheries by 

the Board.

    Comment 26: NMFS agrees that Cook Inlet salmon need Federal 

management, as supported by the critical habitat designation for Cook 

Inlet beluga whales under the authority of the Endangered Species Act 

(ESA) and the Cook Inlet Habitat Conservation Strategy. The Council 

failed to consider the impacts of State management decisions on salmon 

essential fish habitat (EFH). The EA fails to address the impacts of 

current and reasonably foreseeable projects in Cook Inlet affecting 

salmon habitat, including those identified by the Cook Inlet Habitat 

Conservation Strategy.

    Response: NMFS does not agree with the assertions made in the 

comment. The commenter is concerned that by removing the Cook Inlet 

Area from the FMP, NMFS will neglect impacts to Cook Inlet salmon and 

salmon habitat even though NMFS has acknowledged the importance of Cook 

Inlet salmon and salmon habitat in the documents identified by the 

commenter. While the commenter brings up a number of habitat-related 

issues, none of them are germane to the Council's and NMFS' decision on 

the appropriate scope of the management unit within the FMP. Under the 

Magnuson-Stevens Act, fishery management plans manage fisheries in 

Federal waters. NMFS protection or management of Cook Inlet beluga 

whales and habitat under the ESA occurs regardless of the FMP's scope.

    As explained in EA Chapter 5, NMFS manages specific marine mammal 

species under the ESA, and that management is not contingent on the 

existence of a fishery management plan. NMFS has identified more than 

one third of Cook Inlet as critical habitat for the Cook Inlet beluga 

whale (76 FR 20180, April 11, 2011). Pacific salmon constitute one of 

the primary constituent elements for the Cook Inlet beluga whale's 

critical habitat. When designating critical habitat under the ESA, NMFS 

is required to identify specific areas, within the geographical area 

occupied by the species, on which are found those physical or 

biological features (1) essential to the conservation of the species, 

and (2) which may require special management considerations or 

protection. As a primary constituent element, NMFS concluded that 

salmon are essential to the conservation of the Cook Inlet beluga whale 

and may require special management considerations or protection in the 

future. The term ``special'' does not necessarily mean ``beyond 

existing.'' The conclusion that Cook Inlet salmon may require special 

management considerations or protection in the future does not mean 

that salmon are presently impaired or that existing laws and 

regulations managing salmon are not sufficient. NMFS continues to work 

with the State to ensure that Cook Inlet beluga whales are considered 

in salmon management planning for Cook Inlet.

    EFH designations are done through a prescribed process, and EFH can 

be designated in both Federal and state waters depending on the habitat 

(water) needs for each life history stage of each FMP species. Because 

of habitat characteristics, Alaska salmon EFH is (1) all Federal and 

state waters (0-200nm) covering juvenile and adult maturing life 

history stages and ranges from Dixon Entrance to Demarcation Bay 

(Arctic), and (2) all freshwaters listed as anadromous for mature, 

juvenile, and egg stages of the five salmon species. Amendment 12 does 

not change the EFH designation for salmon or any of the current EFH 

provisions or NMFS' role in coordination and consultation on EFH. 

Amendment 11 updates the FMP's essential fish habitat provisions based 

upon the best scientific information available. A description of the 

changes made by Amendment 11 is provided in the Notice of Availability 

for Amendments 10, 11, and 12 (77 FR 19605, April 2, 2012) and is not 

repeated here.

    As explained in EA Chapter 5, a number of ongoing and future 

actions impact salmon spawning habitat, including in-river fisheries, 

development, and pollution. A complete discussion of fishing and non-

fishing impacts to salmon habitat is contained in FMP Appendix A. The 

FMP incorporates the new information from NMFS' report ``Impacts to 

Essential Fish Habitat from Non-fishing Activities in Alaska.'' The 

waters and substrates that comprise salmon EFH are susceptible to a 

wide array of human activities unrelated to fishing. Broad categories 

of such activities include mining, dredging, fill, impoundment, 

discharge, water diversions, thermal additions, actions that contribute 

to nonpoint source pollution and sedimentation, introduction of 

potentially hazardous materials, introduction of exotic species, and 

the conversion of aquatic habitat that may eliminate, diminish, or 

disrupt the functions of EFH. For each of these activity categories, 

known and potential adverse impacts to EFH are described in the NMFS 

report. Mechanisms or processes that may cause adverse effects and how 

these may affect habitat function also are described in the NMFS 

report.

    Additionally, coordination and consultation on EFH is required by 

the Magnuson-Stevens Act (16 U.S.C. 1855(b)). However, this 

consultation does not supersede the regulations, rights, interests, or 

jurisdictions of other Federal or state agencies. The NMFS report also 

contains non-binding recommendations for reasonable steps that could be 

taken to avoid or minimize adverse effects of non-fishing activities on 

EFH.

    As the EA points out, non-fishing activities discussed in the NMFS 

report are subject to a variety of regulations and restrictions 

designed to limit environmental impacts under Federal, state, and local 

laws. Any future activity that potentially impacts salmon spawning 

habitat would be subject to these regulations and the Magnuson-Stevens 

Act's EFH consultation requirements. Amendment 12 does not remove or in 

any way diminish these regulations and restrictions or the Magnuson-

Stevens Act requirements for salmon EFH.

    NMFS had proposed the Cook Inlet Habitat Conservation Strategy as 

part of NOAA's national habitat blueprint project. While the NOAA 

Habitat Blueprint starts with increasing efficiencies within NOAA and 

across its programs and offices, it is also designed to foster 

collaboration across Federal, state, and local levels. NMFS has 

determined that Cook Inlet is not the optimum focus area in the Alaska 

Region for this particular initiative at this time. NMFS is working 

cooperatively with the State to identify additional opportunities to 

partner on common actions in priority areas, improve delivery of 

habitat science, and

 

[[Page 75581]]

 

encourage complementary habitat conservation actions.

    Comment 27: The State fails to make allowances for the safety of 

life at sea as required by National Standard 10.

    Response: National Standard 10, which applies to Federal fisheries 

management under the Magnuson-Stevens Act, states that conservation and 

management measures shall, to the extent practicable, promote the 

safety of human life at sea (16 U.S.C. 1851(a)(10)).

    Although the State is not required to be consistent with National 

Standard 10 when managing State fisheries within State waters, as 

discussed in EA section 4.6, the State promotes the safety of human 

life at sea. Through its public process, the Board addresses specific 

fishery safety issues as they arise and works to modify its 

regulations, as necessary, in order to increase safety and minimize 

risk of injury or death for all fishery participants. ADF&G promotes 

safety, whenever possible, in its salmon fisheries through management 

practices, support in the regulation formation process, and through 

assistance to enforcement agencies.

    Examples of safety supported through management practices include: 

using emergency orders for daytime openings of salmon fisheries to 

allow fishermen to harvest and deliver fish during daylight hours; 

delaying the opening of weekly fishing periods when severe weather is 

forecasted; and extending fishing time after severe weather to 

encourage fishermen to seek shelter from severe weather because they 

will be able to fish when the weather moderates. An example of safety 

supported through regulation is a limit on the length and size of 

salmon nets that can be used, which moderates harvest levels to 

manageable quantities that fishermen are able to handle more safely. 

Additionally, ADF&G promotes safety through direct assistance to 

enforcement agencies. ADF&G provides information on harvest patterns 

and fishing effort as well as lists of registered vessels to the Alaska 

Wildlife Troopers, NMFS, and the United States Coast Guard. This 

information allows these enforcement agencies to focus efforts in areas 

where the fishing fleets are concentrated, providing on-scene presence 

of enforcement personnel, vessels, aircraft, and expedited reaction 

times when accidents occur.

    Comment 28: The EEZ portion of Cook Inlet is essential to properly 

managing the sockeye fishery to provide an orderly fishery and prevent 

over-escapement.

    Response: It is difficult to understand the point being made by the 

comment in relation to the provisions of Amendment 12. However, this 

point is repeated in comment 42 as one example of how the Cook Inlet 

Area salmon fisheries differ from the Prince William Sound Area and the 

Alaska Peninsula Area salmon fisheries. Because comment 42 provides 

further context for responding to this point, NMFS responds to this 

comment in its response to comment 42.

    Comment 29: The EA overlooks current problems with State management 

of the Cook Inlet salmon fisheries and the State's efforts to 

``terminalize'' the Cook Inlet fisheries. Since 1990, the State has 

progressively shifted fishing efforts out of the EEZ in favor of 

nearshore, or terminal, fishing. This practice ignores the timing 

requirements of the Cook Inlet salmon fishery that occurs in the EEZ 

and results in the loss of quality and loss of harvest opportunities. 

This process has had negative impacts on (1) The health of the stocks, 

by fostering an environment for over-escapement and thus lost future 

yields; (2) the ability to manage the fishery to meet OY; and (3) the 

value of the fish harvested for the fishermen, the processors, and the 

community. These efforts to ``terminalize'' the fishery are ongoing and 

are reasonably likely to continue as a result of the Council's removal 

of the Cook Inlet Area from the Salmon FMP.

    Response: According to information in EA sections 4.3.1 and 5.1, 

the majority of the commercial salmon fisheries in Cook Inlet are mixed 

stock fisheries, including the drift gillnet fishery, which is the only 

commercial salmon fishery currently allowed in the EEZ. Following its 

Mixed Stock Salmon Fisheries Policy, the State has discouraged the 

development or expansion of mixed stock fisheries when the fish that 

comprise those stocks can be harvested after they have separated into 

more discrete stocks. Mixed stocks separate into discrete stocks as 

they migrate towards their rivers of origin. Therefore, as a general 

principle, terminal fisheries harvest discrete stocks and off-shore 

fisheries harvest mixed stocks.

    The State's policy for managing mixed stock salmon fisheries is 

consistent with sustained yield of wild fish stocks. As described in EA 

section 3.4, the Council and NMFS have determined that the State's 

sustained yield principle is equivalent to the Magnuson-Stevens Act's 

principle for OY. Salmon fisheries in Upper Cook Inlet are complex, 

mixed stock fisheries with many divergent users. It is difficult to 

manage salmon fisheries for MSY on all stocks and all salmon species in 

circumstances where the composition, abundance, and productivity of the 

salmon stocks and species in those fisheries vary substantially. The 

State has attempted to ensure the conservation of the resources and 

allocate the harvest of the resources in a manner consistent with the 

goal of maximizing the benefits.

    Available information suggests that the Mixed Stock Salmon 

Fisheries Policy does not have negative impacts on the value of the 

fish harvested for the fishermen, the processors, and the community. It 

is difficult to assess the impacts of State management policy on the 

Cook Inlet commercial fishery due to shifting market demands, 

fluctuations in international currency exchange rates, and the inherent 

variability in salmon run strength. However, as shown in EA Chapter 4, 

the recent total Cook Inlet estimated gross earnings and the estimated 

gross earnings of the Cook Inlet drift gillnet fleet do not show a 

negative trend in earnings from 1991 to 2010. With the exception of the 

late 1980's, there has been a trend of increasing prices for sockeye 

salmon in recent years. In fact, the 2010 estimated gross earnings were 

the highest since 1994, and higher than the average annual earnings 

from 1991 to 2012. Additionally, in 2011 the average price per pound 

for Cook Inlet commercial fishermen was the second highest since 1992. 

The 2011 overall ex-vessel value was the highest since 1992. The ex-

vessel value in 2011 was also the 5th highest since 1960 with the drift 

fleet harvesting 61 percent of those fish, 13 percent above average and 

the highest percent since 1992.

    Comment 30: The strongest part of Amendment 12 is the provision for 

ACLs and AMs, because fishermen will be prevented from overfishing, and 

this provision will allow the salmon to maintain a steady population. 

The use of escapement as opposed to rigid numerical catch limits 

provides for the naturally occurring fluctuation in population.

    Response: NMFS acknowledges the comment.

    Comment 31: The Council did not comply with the ACL and AM 

requirement for Cook Inlet fisheries. Instead of setting ACLs and AMs, 

the Council removed the fisheries from the FMP, which is arbitrary and 

capricious.

    Response: The decision to remove the net fishing areas from the FMP 

was made considering a number of factors. The predominant factors were 

the Council's salmon management policy, the recognition that the State 

is the appropriate authority for managing

 

[[Page 75582]]

 

salmon, and the determination that the State is adequately managing 

salmon in the net fishing areas consistent with the policies and 

standards of the Magnuson-Stevens Act. The FMP prohibits commercial 

fishing in the West Area so that the State can continue to manage the 

salmon fisheries in waters adjacent to the West Area, including the 

Cook Inlet Area, Prince William Sound Area, and the Alaska Peninsula 

Area. The Council determined that Federal conservation and management 

are not required for the fisheries that occur in the Cook Inlet Area 

because overfishing is prevented by the State's management program.

    The Council and NMFS determined that the State manages Alaska 

salmon stocks according to the best scientific information available to 

achieve sustainable yield. Information provided in EA Chapter 4 and 

section 5.1 demonstrates that salmon are targeted throughout their 

adult life by a variety of fisheries from commercial mixed stock ocean 

fisheries to terminal net fisheries, sport fisheries, subsistence 

fisheries, and personal use fisheries. Escapement-based management, 

with real-time monitoring of run strength, inherently accounts for 

fishery catch and natural mortality. The State monitors catch in all of 

the salmon fisheries and manages salmon holistically by incorporating 

all the sources of fishing mortality on a particular stock or stock 

complex in calculating the escapement goal range. As explained in EA 

section 3.3, overfishing is prevented by in-season monitoring and data 

collection that indicates when an escapement goal is not being met. 

When the data indicate low run strength due to natural fluctuations in 

salmon abundance, ADF&G closes the fishery to ensure the escapement 

goal range is reached. This may result in low catches for the target 

fisheries, but it prevents overfishing and ensures sustained yield over 

the long term.

    Comment 32: The Council should not adopt the State's escapement 

goals as a proxy for the ACL requirements, but should engage the 

Council's Scientific and Statistical Committee (SSC) and other experts 

including ADF&G to transparently develop statistically and 

scientifically defensible escapement goals for Alaska's salmon 

fisheries.

    Response: The State's salmon management program is based on 

scientifically defensible escapement goals and inseason management 

measures to prevent overfishing. The State's process for establishing 

escapement goals is described in EA section 3.3 and in EA Appendix 1. 

During the development of Amendment 12, NMFS and the Council engaged 

the SSC and ADF&G in determining the best approach for addressing the 

ACL requirement for Alaska salmon. Through that process, and as 

documented in EA section 3.3, the Council and NMFS determined that 

Amendment 12 implements the best approach for addressing the ACL 

requirement for Alaska salmon.

    Amendment 12 does not establish ACLs or AMs in the West Area 

because no commercial salmon fisheries are authorized in the West Area. 

The mechanism to establish ACLs and AMs for the East Area commercial 

troll fishery builds on the FMP's existing framework for establishing 

status determination criteria. Amendment 12 does not establish a 

mechanism for specifying ACLs and AMs for Chinook salmon because the 

Magnuson-Stevens Act exempts stocks managed under an international 

fisheries agreement in which the United States participates from the 

ACL requirement (16 U.S.C. 1853 note). Under Amendment 12, the 

mechanisms for specifying ACLs for Tier 2 (coho salmon) and Tier 3 

(coho, pink, chum, and sockeye salmon stocks managed as mixed-species 

complexes) salmon stocks are established using the State's 

scientifically-based management measures to control catch and prevent 

overfishing. This approach represents an alternative approach to the 

methods prescribed in NMFS' National Standard 1 Guidelines (50 CFR 

600.310) for specifying ACLs. The Council recommended and NMFS approved 

an alternative approach because the State's escapement-based management 

system is a more effective management system for preventing overfishing 

of Alaska salmon than a system that places rigid numeric limits on the 

number of fish that may be caught. Escapement is defined as the annual 

estimated size of the spawning salmon stock in a given river, stream, 

or watershed.

    Comment 33: The Council should not replace the SSC with the State's 

peer review process because the State's process is subject to 

significant political influence.

    Response: NMFS does not agree with the commenter's assertion that 

the State's process is subject to significant political influence.

    As part of Amendment 12, the Council established a peer review 

process in the FMP that utilizes the State's existing salmon expertise 

and processes for developing escapement goals as fishing level 

recommendations. The Council and NMFS carefully reviewed the State's 

process for establishing escapement goals, as described in EA section 

3.3 and in EA Appendix 1. They chose to establish a peer review process 

in the FMP that utilizes existing State salmon expertise and review 

processes for the scientific information used to advise the Council 

about the conservation and management of the salmon fisheries in the 

EEZ. Using the State's process as the peer-review process helps to 

recognize the limited role and expertise of NMFS and the Council in 

salmon fishery management, as well as the State's existing expertise 

and infrastructure. The State, as the peer review body, will work with 

the Council to implement the provisions of the Magnuson-Stevens Act for 

the fisheries managed under the FMP. This peer review process requires 

the State to annually prepare a stock assessment report, using the best 

available scientific information, for the salmon caught in the 

Southeast Alaska troll fishery and provide the stock assessment report 

to the Council. The peer review process is discussed in detail in 

section 3.5 of the EA (see ADDRESSES).

    Comment 34: The EA states that its purpose is to decide whether 

there is a need to supplement the Environmental Impact Statement (EIS) 

for the proposed action, but it is not clear what this means or which 

EIS should be supplemented. The draft EA is rooted in the fundamentally 

false premise that NMFS need only review the previously issued ``Final 

Programmatic Environmental Impact Statement for the Pacific Salmon 

Fisheries Management off the Coasts of Alaska, Washington, Oregon, and 

California'' (Salmon PSEIS) and then decide whether it should be 

supplemented. Indeed, it is not clear that NMFS has ever addressed its 

decision to defer management in Cook Inlet to the State.

    Response: The EA states that ``This environmental assessment (EA) 

analyzes the impacts of the proposed action to revise the Salmon FMP 

and the alternative management approaches considered.'' The EA 

summarizes previous National Environmental Policy Act (NEPA) documents 

for context and background. The EA considers whether the Salmon PEIS 

needs to be supplemented for the East Area because Amendment 12 

maintains the action that was analyzed in that PEIS. It also analyzes 

the impacts of the alternatives on the resource components--salmon 

stocks, ESA-listed Pacific salmon, marine mammals, and seabirds--for 

all four salmon fisheries that occur in the EEZ. For the West Area, the 

EA examines the impacts of status quo management and the ongoing 

fisheries on the resources components. The EA

 

[[Page 75583]]

 

provides the best available information on these interactions between 

the salmon fisheries in the EEZ and these resources. See response to 

comment 35.

    As explained in response to comment 36 and EA section 2.1, prior to 

approval of Amendment 12, the FMP was vague as to the deferral of 

management authority to the State in the Cook Inlet Area and included 

no explicit language that the Council and NMFS had delegated management 

in the net fishing areas to the State. As stated in the EA, the Council 

and NMFS' proposed action was to revise and update the FMP to reflect 

the Council's policy for managing salmon fisheries and to comply with 

the Magnuson-Stevens Act. The EA examined four alternatives for 

determining the future scope of the FMP and where Federal conservation 

and management is required: (1) No action; (2) maintain the existing 

geographic scope of the FMP and update the FMP; (3) maintain the FMP in 

the East Area and, in the West Area, modify the FMP to specifically 

exclude the net fishing areas and the sport fishery from the FMP and 

update the FMP; and (4) maintain the FMP in the East Area only and 

update the FMP. Applicable to Alternatives 2, 3 and 4 was the Council's 

position that in areas where the FMP applies, management would be 

delegated to the State. The EA presents the impacts that would occur 

under all the alternatives, including Alternative 2, which includes the 

Cook Inlet Area in the FMP and delegates management of the salmon 

fisheries that occur there to the State.

    Amendment 12 does not delegate management of the salmon fisheries 

in the Cook Inlet Area to the State. Instead of imposing Federal 

management of the salmon fisheries in the West Area and delegating 

management to the State, Amendment 12 removes this area and the 

fisheries that occur within it from fishery management under the FMP. 

The Magnuson-Stevens Act, at 16 U.S.C. 1856(a)(3)(A)(i), provides that 

a state may regulate a fishing vessel outside the boundaries of the 

state if the fishing vessel is registered under the law of that state 

and there is no fishery management plan or other applicable Federal 

fishing regulations for the fishery in which the vessel is operating. 

Under Amendment 12, the State can manage vessels operating in the Cook 

Inlet Area when those vessels are registered with the State.

    Comment 35: A supplemental EIS is required because the physical 

environment of Cook Inlet and the fisheries themselves are drastically 

different in 2012 than they were 22 or 34 years ago.

    Response: While NMFS agrees that the Cook Inlet salmon fisheries 

differ today from when the FMP was originally implemented in 1979 or 

when the FMP was comprehensively amended in 1990 under Amendment 3, 

NMFS disagrees that these changes require the preparation of a 

supplemental EIS. A supplemental EIS would be required if NMFS makes 

substantial changes in the proposed action that are relevant to 

environmental concerns or significant new circumstances or information 

exist relevant to environmental concerns and bear on the proposed 

action or its impacts (40 CFR 1502.9(c)(1)).

    NMFS determined that Amendment 12 is not a substantial change in 

the proposed action, as it maintains the existing salmon management 

structure. Amendment 12 updates the FMP to comply with the current 

Magnuson-Stevens Act requirements, and amends the FMP to more clearly 

reflect the Council's policy with regard to the State's continued 

management authority over commercial fisheries in the net fishing 

areas, the Southeast Alaska commercial troll fishery, and the sport 

fishery. These changes improve the FMP but they do not result in any 

substantive changes to the management of the salmon fisheries that 

occur in these areas.

    NMFS prepared an EA to determine whether the proposed action had 

the potential to cause significant environmental effects. The EA 

analyzed whether there were significant new circumstances or 

information relevant to environmental concerns and bearing on the 

proposed action or its impacts. In addition, the EA addressed all 

beneficial and adverse impacts of the proposed action to reach the 

conclusion of no significant impacts. The information and analysis 

contained in the EA demonstrates that Amendment 12 will not 

significantly impact the quality of the human environment. Based on the 

EA, NMFS prepared a FONSI that describes in more detail why NMFS 

determined that the action will not significantly impact the quality of 

the human environment (see ADDRESSES). Based on this FONSI, NMFS 

determined that an EA is the appropriate NEPA analysis for this action 

and preparation of a supplemental EIS is not warranted.

    Comment 36: The consequences of deferring Cook Inlet salmon 

management to the State and of removing the Cook Inlet Area from the 

FMP were not contemplated in the prior EIS and are not properly 

discussed in the current EA.

    Response: NMFS assumes the commenter is referring to the EIS 

prepared in 1978 for the original FMP, because the 2003 EIS prepared 

for the Pacific salmon fisheries management off the coasts of Southeast 

Alaska, Washington, Oregon, and California, and in the Columbia River 

Basin does not apply to salmon fisheries occurring in Cook Inlet.

    The impacts associated with State management of salmon fisheries 

occurring in the net fishing areas were examined in the 1978 EIS. When 

the 1978 EIS was prepared, the State had been managing the salmon 

fisheries in the Cook Inlet Area, Prince William Sound Area, and the 

Alaska Peninsula Area in accordance with the North Pacific Fisheries 

Act of 1954. Federal regulations at 50 CFR 210 set the outside fishing 

boundaries for salmon net fishing in Alaska as those set forth under 

State regulations and provided that any fishing conducted within these 

fishing boundaries shall be conducted under fishing regulations 

promulgated by the State.

    When the Council comprehensively revised the FMP in 1990, the FMP 

continued to broadly define the fishery management unit as the entire 

EEZ, including the net fishing areas. However, the FMP continued to 

recognize Federal law that stated fishing conducted within the net 

fishing areas was governed by the State. The FMP did not explicitly 

delegate management of the salmon fisheries that occur in the net 

fishing areas to the State.

    Federal law mandating State management of the net fishing areas 

changed with the repeal of the North Pacific Fisheries Act of 1954 and 

the enactment of the North Pacific Anadromous Stocks Act of 1992. In 

1995, as a result of this change in Federal law, NMFS repealed the 

fishing boundary regulations at 50 CFR part 210 because they were 

without statutory basis. At that time, the Council and NMFS did not 

amend the FMP to specifically delegate salmon management to the State 

under the FMP; the State continued to manage the salmon fisheries in 

the net fishing areas.

    Amendment 12 clarifies the FMP with respect to fishery management 

in light of these changes to Federal law, and does so in a way that 

does not change how the salmon fisheries occurring in the net fishing 

areas have been managed for decades. Amendment 12 maintains the 

authority and practice of State management of the salmon fisheries 

occurring in these areas. While Amendment 12 modifies the FMP, it does 

not modify the way in which the salmon fisheries within the net fishing 

areas have been managed for many years. The EA analyzes the impacts of 

removing the Cook Inlet Area, the

 

[[Page 75584]]

 

Prince William Sound Area, and the Alaska Peninsula Area from the FMP, 

and provides a detailed discussion of salmon management in EA Chapter 4 

and the salmon resources in EA Chapter 5. As explained in the response 

to comment 35, the EA prepared for Amendment 12 thoroughly analyzes the 

impacts of the proposed action on the human environment, including the 

impacts resulting from the removal of the Cook Inlet Area from the FMP.

    Comment 37: The EA fails to discuss the environmental impact of 

removing any requirement for the State to comply with the Magnuson-

Stevens Act.

    Response: NMFS disagrees. EA Chapter 5 analyzes the environmental 

impacts of current salmon fisheries management (status quo) and the 

impacts of the alternatives relative to status quo.

    Comment 38: The Secretary of Commerce (Secretary) should send this 

proposed rule back to the Council and NMFS to properly include the 

three net fishing areas in the FMP. These net fishing areas were 

excluded from the FMP in order to prevent stakeholders in these 

fisheries from exercising Federal review of State management measures 

that discriminate against nonresidents of the State.

    Response: NMFS, under authority delegated to it by the Secretary, 

approved Amendment 12 on June 29, 2012. NMFS determined that Amendment 

12, including its removal of the net fishing areas from the FMP, is 

consistent with the FMP, the provisions of the Magnuson-Stevens Act, 

and other applicable Federal law.

    The Council and NMFS did not remove the net fishing areas from the 

FMP to prevent stakeholders from exercising Federal review of State 

management measures. The Council recommended and NMFS approved removal 

of these areas from the FMP because Federal conservation and management 

is not necessary for the fisheries that occur in these areas. The 

Council's and NMFS' rationale for removing these areas from the FMP is 

explained in detail in EA section 2.5 and is summarized in the response 

to comment 4. The three net areas were excluded from the FMP because 

Federal conservation and management is not necessary for the fisheries 

that occur there. The Council determined that excluding these areas and 

the sport fishery from the FMP allows the State to manage Alaska salmon 

stocks as seamlessly as practicable throughout their range, rather than 

imposing dual State and Federal management.

    The Council meets regularly throughout the year and stakeholders in 

the net fishing areas can present issues to the Council if the need 

arises. Whether the Council chooses to act depends on a number of 

factors, but stakeholders in the net fishing areas can participate in 

the Federal forum of the Council even though the net fishing areas are 

not part of the FMP.

    State management of the commercial fisheries in the Cook Inlet Area 

does not discriminate against residents of other states. Alaska 

residency is not a requirement for holding the limited entry permit 

necessary to participate in the commercial fishery and is not a factor 

in any aspect of the management of the commercial fisheries in Federal 

waters.

    Comment 39: The State's trajectory in Cook Inlet in recent years--

with seven stocks of concern, the extirpation of several sockeye runs, 

and continued reduced returns--points to serious consequences of 

staying the course under State management. Not only are these concerns 

not properly addressed in the EA, but individually and collectively 

they raise substantial questions as to whether Amendment 12 will have 

significant environmental effects thereby warranting preparation of a 

full EIS.

    Response: The conclusions in the comment concerning adverse impacts 

to Cook Inlet salmon stocks due to State management are not supported 

by available information. The EA section 5.1 analyzes the best 

available information on Cook Inlet salmon stocks. As shown in section 

5.1, salmon abundance fluctuates dramatically between years. Exact 

causes for poor salmon returns are unknown, but may involve a variety 

of factors outside the control of fishery managers to mitigate, 

including unfavorable ocean conditions, freshwater environmental 

factors, disease, or other likely factors on which data are limited or 

nonexistent. The ocean and freshwater environments are changing, and 

the impacts of those changes on salmon abundance are difficult to 

forecast because they, in turn, depend on somewhat uncertain forecasts 

of global climate. Therefore, NMFS concludes that State salmon 

management does not cause low salmon returns.

    Because the Council and NMFS determined that the State is 

adequately managing salmon stocks consistent with the policies and 

standards of the Magnuson-Stevens Act, the Council and NMFS determined 

that Amendment 12 will not significantly impact the quality of the 

human environment. In addition, the EA addressed all beneficial and 

adverse impacts of the proposed action to reach the finding of no 

significant impacts. Based on the EA, NMFS prepared a FONSI that 

describes in more detail why NMFS determined that the action will not 

significantly impact the quality of the human environment (see 

ADDRESSES). Based on this FONSI, an EA is the appropriate NEPA analysis 

for this action and preparation of an EIS is not warranted.

    Comment 40: The EA fails to demonstrate any economic impacts or 

impacts to the fishery resource that have been occurring under State 

management and that are likely to continue or get worse in light of 

Amendment 12. The economic losses associated with the decline in 

Chinook, sockeye, chum, and pink harvests are in the hundreds of 

millions of dollars over the past half century. This type of economic 

analysis was glossed over by the rush to revise the Salmon FMP with 

Amendment 12.

    Response: EA Chapter 4 provides detailed information and analysis 

of the economic impacts that have been occurring under State management 

and that are likely to continue under Amendment 12. The information and 

analysis represents the best economic information available. The 

conclusions in the comment about economic losses are not supported by 

the available information. See response to comment 23.

    Comment 41: All the stakeholders testified that they wished to 

retain Federal oversight and remain under the FMP. Currently, the Cook 

Inlet stakeholders face pressures on their fishery that are not 

encountered in other areas of Alaska. Urbanization of the Cook Inlet 

basin and State regulations that permit resident-only dipnet fishing 

threaten the economic viability of the commercial fishery. Listing of 

the Cook Inlet beluga whale will have unknown consequences on the 

fishery. Also, Federal subsistence users in Cook Inlet rely on salmon 

for subsistence needs. Removing the Cook Inlet Area from the FMP will 

leave the stakeholders without a voice during interagency consultation 

regarding State management, habitat preservation, endangered species 

interactions, and subsistence needs.

    Response: The Council and NMFS considered the public testimony 

received on Amendment 12, including testimony from Cook Inlet 

commercial salmon fishermen asking that the Cook Inlet Area remain in 

the FMP and that the Council and NMFS provide oversight of State 

management of salmon fisheries in Cook Inlet. As explained in the 

responses to comments 6 and 54, the Council and NMFS cannot adopt an 

FMP that only imposes Federal fishery management oversight over 

fisheries occurring in an area but that

 

[[Page 75585]]

 

does not include provisions that address all of the measures for 

fishery management plans required by the Magnuson-Stevens Act. The 

Council and NMFS explained that the limited type of oversight expressed 

in public comment is not possible under the Magnuson-Stevens Act.

    Removal of the Cook Inlet Area from the FMP does not limit the 

public's ability to participate in NMFS' management of ESA-listed 

species and designated critical habitat, or the U.S. Fish and Wildlife 

Service's management of subsistence fisheries on Federal lands. The ESA 

and Federal laws administered by the U.S. Fish and Wildlife Service 

contain specific provisions for public participation that the FMP need 

not duplicate. See the response to comment 26.

    Additionally, as explained in the response to comments 4 and 23, 

NMFS has limited ability to change any actions taken by the State 

within State waters.

    Comment 42: The EA unreasonably fails to consider the alternative 

of treating Cook Inlet differently from other parts of the West Area. 

The EA rejects that alternative because there is no distinction between 

these areas relative to the National Standards and the criteria for 

determining where Federal conservation and management are required. 

This statement could not be further from the truth. Cook Inlet is 

different, and here are some of the ways:

     Some of the nation's largest wild runs of Chinook, 

sockeye, coho, pink, chum, and steelhead salmon return through the EEZ 

portion of Cook Inlet.

     Two-thirds of the State's population lives in the Cook 

Inlet area, creating habitat and resource competition issues unique in 

Alaska.

     NMFS has identified Cook Inlet as a priority for habitat 

issues in its Habitat Blueprint strategy.

     There are seven stocks of concern in Cook Inlet (versus 

none in the other two net fishing areas in the West Area).

     Total harvests in Cook Inlet have steadily declined in 

recent years, unlike other areas in Alaska.

     The EEZ portion of Cook Inlet is an ideal fishing location 

(it is the preferred location of the drift fleet) where significant 

portions of the run can be harvested and is an ideal target for 

unregulated fishing by out-of-state vessels.

     The EEZ portion of Cook Inlet is essential to properly 

managing the sockeye fishery to provide an orderly fishery and prevent 

over escapement.

    None of these factors are necessarily present in the other EEZ 

fisheries in the West Area. In light of these clear differences, it was 

arbitrary for the EA to not consider an alternative that treats Cook 

Inlet differently.

    Response: The Council considered whether to manage the three areas 

separately but found that there is no distinction between these areas 

relative to the National Standards and the criteria for determining 

where Federal conservation and management are required. The Council 

recognized that Cook Inlet is different from Prince William Sound and 

the Alaska Peninsula, as described in the EA. However, none of the 

differences highlighted in the comment or in the EA changes whether the 

areas require management under a fishery management plan. The primary 

factor in the Council's decision to address these three areas together 

was that the salmon fisheries in each area are managed by the State's 

salmon management program.

    Comment 43: The petition process in the FMP is inadequate and makes 

no provisions for when (1) A third party proposes, and the Board adopts 

a proposal that is adverse; (2) the Board generates and adopts its own 

proposal, (3) the Board makes emergency or out of cycle changes 

impacting the fishery; or (4) ADF&G makes emergency in season changes.

    Response: Section 9.3 of the FMP, as amended by Amendment 12, 

provides a member of the public with an opportunity to petition NMFS to 

conduct a consistency review of any State management measure that 

applies to salmon fishing in the East Area if that person believes the 

management measure is inconsistent with the provisions of the FMP, the 

Magnuson-Stevens Act, or other applicable federal law. Prior to 

submitting a petition requesting a consistency review to NMFS, section 

9.3 requires a person to exhaust available administrative regulatory 

procedures with the State. Section 9.3 provides two ways in which 

persons can demonstrate exhaustion of State administrative regulatory 

procedures. First, NMFS will conclude that a person has exhausted 

available State administrative regulatory procedures if the person can 

demonstrate that he or she: (1) submitted one or more proposals for 

regulatory changes to the Board during a Call of Proposals consistent 

with 5 Alaska Administrative Code (AAC) 96.610, and (2) received an 

adverse decision from the Board on the proposal(s). Second, section 9.3 

recognizes that there could be circumstances that may require 

regulatory changes outside the regular process set forth in 5 AAC 

96.610, or circumstances when the process set forth in 5 AAC 96.610 is 

unavailable due to the timing of the action requested. Under these 

unusual circumstances, NMFS will conclude that a person has exhausted 

State administrative regulatory procedures if the person can 

demonstrate that he or she: (1) Could not have followed the regular 

Call of Proposals requirements at 5 AAC 96.610, (2) submitted an 

emergency petition to the Board or ADF&G consistent with 5 AAC 96.625 

or submitted an agenda change request to the Board consistent with 5 

AAC 39.999, and (3) received an adverse decision from the Board or 

ADF&G on the emergency petition or agenda change request.

    The commenter appears to be concerned that a person would be unable 

to demonstrate exhaustion of State administrative regulatory 

procedures, and therefore unable to obtain NMFS review of his or her 

petition, even when the situations highlighted in the comment have 

occurred. However, these situations appear to be covered by the second 

method of exhaustion when unusual circumstances, such as the ones 

highlighted in the comment, have occurred.

    The FMP requires exhaustion of available State administrative 

regulatory procedures before petitioning NMFS for a consistency review 

for several reasons. The Council and NMFS delegated regulation of the 

commercial and sport salmon fisheries in the East Area to the State in 

recognition of its expertise, and because the State is in the best 

position to consider challenges and make changes to its management 

measures. The Council and NMFS also recognize the importance of public 

participation during the development of State fishery management 

measures, and exhaustion encourages the public to actively participate 

in and try to effectuate fishery management change through the State 

process. Finally, by requiring a person to exhaust the State's 

administrative regulatory procedures before petitioning NMFS, the State 

is presented with an opportunity to hear the challenge and take 

corrective action if the State finds merit in the challenge before 

federal resources are expended. The Council and NMFS have determined 

that the petition process set forth in Chapter 9 of the FMP, as 

amended, is adequate and addresses the situations raised by the 

commenter.

    Comment 44: The Council did not consider whether Federal loan and 

grant funds will remain available for investment in the Cook Inlet 

salmon industry, habitat restoration, and if necessary, failed run 

disaster assistance.

 

[[Page 75586]]

 

    Response: The geographic scope of the FMP has no effect on the 

availability of Federal loans and grant funds for Cook Inlet salmon 

fishery participants, habitat restoration, or assistance in the case of 

a commercial fishery failure due to a natural resource disaster. 

Therefore, the Council did not need to consider the availability of 

funding in the areas identified by the commenter when it determined the 

appropriate scope of the FMP.

    Several recent examples demonstrate the lack of any connection 

between the availability of Federal loans and grant funds and the 

Council and NMFS' decision to remove the Cook Inlet Area from the FMP. 

NMFS is implementing a buyback program for the participants in the 

Southeast Alaska purse seine salmon fishery, which includes a fishing 

capacity reduction loan of approximately $23.5 million to finance the 

purchase of State limited entry permits. This fishery occurs within 

State waters and is not managed by the FMP. NMFS' administration of 

this program is irrespective of the scope of the FMP. For more 

information on this program, please see NMFS Financial Services' Web 

site at http://www.nmfs.noaa.gov/mb/financial_services/southeast_alaska_purse_seine_salmon_buyback.html.

    Additionally, under the Magnuson-Stevens Act, at 16 U.S.C. 

1861a(a), the Secretary can determine a commercial fishery failure due 

to a fishery resource disaster for any commercial fishery regardless of 

whether the fishery occurs in Federal waters or is managed under a 

Federal fishery management plan. For example, in 2010 the Secretary 

determined that a commercial fishery failure due to a fishery resource 

disaster occurred for the Yukon River Chinook salmon fishery in 2008 

and 2009. This fishery is managed by the State and is not under a 

Federal fishery management plan. In the summer of 2012, Alaska State 

Governor Sean Parnell requested that the Secretary determine a 

commercial fishery failure due to a fishery resource disaster for the 

Chinook salmon fisheries on the Yukon and Kuskokwim rivers and in Cook 

Inlet. The Secretary's review of this request, and the supporting 

information provided by the State, and the Secretary's subsequent 

determination, were irrespective of a Federal fishery management plan.

    Comment 45: We support the revised regulations at Sec.  679.7(h) to 

prohibit commercial fishing for salmon using any gear except troll gear 

in the East Area as it is consistent with State regulations.

    Response: NMFS acknowledges the comment.

    Comment 46: Unfairly limiting Alaska salmon trolling permits to 

fish only from the Canadian border to Cape Suckling is a political move 

initiated and perpetuated in the special interest of other gear groups. 

Trollers are small operations that are efficient at targeting specific 

species, unlike the vessels that are now allowed to operate west of 

Cape Suckling that have large bycatch wastage, decimating prime 

fisheries. Allowing smaller salmon troll vessels in State waters would 

create jobs, encourage small business, and efficiently use existing 

salmon resources.

    Response: To the extent the commenter is referring to fishing for 

salmon with troll gear in the West Area, such fishing has been 

prohibited since 1973 under State management. The FMP has prohibited 

commercial fishing with all gear types in the West Area since 1979, and 

the Council continued this prohibition with Amendment 12. The Council 

and NMFS' rationale for continuing this prohibition is provided in EA 

section 2.5. To the extent the commenter is referring to fishing for 

salmon with troll gear in State waters, the Council and NMFS do not 

have the authority to open or close State waters to troll vessels. The 

commenter should direct this comment to the State, which has the 

authority to open or close State waters to troll vessels.

    Comment 47: The State is doing little or nothing to address the 

introduction and spread of northern pike, a harmful invasive species, 

in Cook Inlet. The EA fails to discuss the critical problems related to 

northern pike in Cook Inlet. Given the State's failure to take action, 

further northern pike infestations are reasonably likely as a result of 

the Council's action.

    Response: NMFS disagrees with the commenter's conclusion that the 

State is doing little to nothing to address the introduction and spread 

of northern pike in Cook Inlet. NMFS has no authority under the 

Magnuson-Stevens Act to manage northern pike in Alaska lakes under a 

Federal fishery management plan. The State has extensive projects and 

partnerships to control and eradicate northern pike in Southcentral 

Alaska. In 2007, ADF&G developed the Alaska Northern Pike Management 

Plan and identified northern pike as the highest invasive species 

threat in Southcentral Alaska. In the past five years, the State has 

eliminated northern pike populations from four lakes systems in 

Southcentral Alaska, and has initiated large-scale control efforts in 

Alexander Creek, a tributary of the Susitna River, where a reduction in 

salmon abundance has been observed. ADF&G plans to continue to 

investigate options to control or eradicate northern pike in lake and 

river systems that support valuable commercial, subsistence, and sport 

fisheries in the Cook Inlet watershed, and to implement options as 

feasible.

    The State's past and ongoing efforts to eradicate or control 

northern pike in Southcentral Alaska are not connected to the FMP or 

the Council's and NMFS' action on Amendment 12, because the FMP was and 

is not the catalyst for the State's efforts. However, NMFS has added an 

analysis of the northern pike control and eradication projects to the 

cumulative effects analysis in EA section 5.7.6 because ADF&G's 

projects and partnerships to control and eradicate northern pike are a 

reasonably foreseeable future action that will mitigate the negative 

impacts of pike predation on salmon abundance in freshwater lakes and 

rivers. The analysis indicates that these actions will reduce the 

potential for pike to move into estuarine waters of Cook Inlet.

 

 

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