# Fisheries of the Exclusive Economic Zone off Alaska; Cook Inlet Salmon; Amendment 16 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-08664 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 30, 2024 - **Citation:** 89 FR 34718 ## Text DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR 902 50 CFR Parts 600 and 679 [Docket No.: 240417-0111] RIN 0648-BM42 Fisheries of the Exclusive Economic Zone off Alaska; Cook Inlet Salmon; Amendment 16 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to implement amendment 16 to the Fishery Management Plan (FMP) for the Salmon Fisheries in the Exclusive Economic Zone (EEZ) Off Alaska (Salmon FMP). Amendment 16 and this final rule establish Federal fishery management for all salmon fishing that occurs in the Cook Inlet EEZ, which includes commercial drift gillnet and recreational salmon fishery sectors. This action is necessary to comply with rulings from the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the District of Alaska, and to ensure the Salmon FMP is consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This final rule is intended to promote the goals and objectives of the Magnuson-Stevens Act, the Salmon FMP, and other applicable laws. DATES: This rule is effective on May 30, 2024. ADDRESSES: Electronic copies of amendment 16; the Environmental Assessment, the Regulatory Impact Review, and the Social Impact Analysis (contained in a single document and collectively referred to as the “Analysis”); the Finding of No Significant Impact; and the public comment announcement and tribal consultation and meeting summaries prepared for this action may be obtained from http://www.regulations.gov or from the NMFS Alaska Region website at https://www.fisheries.noaa.gov/action/amendment-16-fmp-salmon-fisheries-alaska. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Gretchen Harrington; in person at NMFS Alaska Region, 709 West 9th Street, Room 401, Juneau, AK; and to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments”; or by using the search function. FOR FURTHER INFORMATION CONTACT: Doug Duncan, 907-586-7228 or doug.duncan@noaa.gov. SUPPLEMENTARY INFORMATION: This final rule implements amendment 16 to the Salmon FMP. NMFS published the proposed rule and Notice of Availability (NOA) for amendment 16 in the Federal Register on October 19, 2023 (88 FR 72314), with public comments invited through December 18, 2023. Comments submitted on the NOA and the proposed rule for amendment 16 were considered jointly. The Secretary of Commerce approved amendment 16 on April 9, 2024, after considering public comment and determining that amendment 16 is consistent with the Salmon FMP, the Magnuson-Stevens Act, and other applicable laws. NMFS manages U.S. salmon fisheries in the EEZ off of Alaska under the Salmon FMP. The North Pacific Fishery Management Council (Council) prepared, and the Secretary of Commerce (Secretary) approved, the Salmon FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations implementing the Salmon FMP are located at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600. NMFS is authorized to prepare an FMP amendment necessary for the conservation and management of a fishery managed under the FMP if the Council fails to develop and submit such an amendment after a reasonable period of time (section 304(c)(1)(A); 16 U.S.C. 1854(c)(1)(A)). Because the Council failed to take action to recommend an FMP necessary for the conservation and management of the Cook Inlet EEZ salmon fishery, NMFS developed amendment 16 to the Salmon FMP and this final rule pursuant to section 304(c) of the Magnuson-Stevens Act in order to comply with rulings from the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the District of Alaska, and to ensure the Salmon FMP is consistent with the Magnuson-Stevens Act. Amendment 16 Overview Amendment 16 incorporates the Cook Inlet EEZ into the Salmon FMP as the Cook Inlet EEZ Area (defined as the EEZ waters of Cook Inlet north of a line at 59°46.15′ N), thereby bringing the salmon fishery that occurs within it under Federal management by the Council and NMFS. Two different sectors participate in the Cook Inlet EEZ Area salmon fishery: the commercial drift gillnet sector and the recreational sector. Historically, the commercial drift gillnet fleet has harvested over 99.99 percent of salmon in the Cook Inlet EEZ Area. Under this action, all salmon fishing in the Cook Inlet EEZ Area is managed by NMFS and the Council separately from adjacent State of Alaska (State) water salmon fisheries. Amendment 16 revises the Salmon FMP, beginning with an updated history of the FMP and introduction in chapter 1, as well as a revised description of the fishery management unit in chapter 2 that includes the Cook Inlet EEZ Area as a separate and distinctly managed area. The management and policy objectives in chapter 2 are revised to include consideration of the Cook Inlet EEZ Area. Amendment 16 consolidates chapters describing management of the Salmon FMP's East Area and West Area into chapter 3. No substantive changes are made to Salmon FMP content related to the East Area and West Area. A new chapter 4 comprehensively describes Federal management measures and the roles and responsibilities of NMFS and the Council in managing the Cook Inlet EEZ Area salmon fishery. In particular, chapter 4 defines all required conservation and management measures, including maximum sustainable yield (MSY), optimum yield (OY), and status determination criteria, and includes an outline of the harvest specifications process. Chapter 4 also describes required Federal permits; fishing gear restrictions; fishing time and area restrictions; NMFS inseason management provisions; and monitoring, recordkeeping, and reporting requirements. Chapter 5 contains all content related to domestic annual harvesting and processing capacity, finding that all salmon fisheries off Alaska can be fully utilized by U.S. harvesters and processors. This finding is unchanged by this action. Chapter 6 contains information on Essential Fish Habitat and Habitat Areas of Particular Concern and is not modified by this action. Amendment 16 removes the outdated Fishery Impact Statement in the Salmon FMP. The Analysis prepared for amendment 16 contains the Fishery Impact Statement for the Cook Inlet EEZ salmon fishery and this action. Maximum Sustainable Yield and Optimum Yield Under amendment 16, MSY and OY are specified consistent with the National Standard guidelines and are briefly described below. The definitions of MSY and OY are explained in greater detail in the preamble to the proposed rule and remain unchanged in this final rule. MSY is specified for salmon stocks and stock complexes in Cook Inlet and defined as the maximum potential yield, which is calculated by subtracting the lower bound of the escapement goal (or another escapement value as recommended by the Council's Scientific and Statistical Committee (SSC) based on the best scientific information available) from the total run size for stocks where data are available. An escapement goal is the number of spawning salmon likely to result in sustainable yields over a broad range of expected conditions. Any fish in excess of that necessary to achieve the escapement goal for each stock or stock complex are theoretically available for harvest under this definition of MSY. For stocks where escapement is not known, historical catch is used as a proxy for MSY. Amendment 16 defines the OY range for the Cook Inlet EEZ salmon fishery in the Salmon FMP as the range between the averages of the three lowest years of total estimated EEZ salmon harvest and the three highest years of total estimated EEZ salmon harvest from 1999 to 2021. This definition of OY tempers the influence of extreme events in defining OY ( e.g., fishery disasters at the low end, or extremely large harvests at the high end), thereby resulting in a range of harvests that are likely to be sustainable and provide the greatest net benefit to the Nation into the future. Status Determination Criteria and Annual Catch Limits Amendment 16 specifies objective and measurable criteria for determining when a stock or stock complex is subject to overfishing or is overfished. These are referred to as status determination criteria and are established during the harvest specification process and evaluated each year after fishing is complete. Amendment 16 establishes a tier system to assess salmon stocks based on the amount of available information for each stock. NMFS annually assigns each salmon stock to a tier based on the best available scientific information during the harvest specifications process as follows: • Tier 1: salmon stocks with escapement goals and stock-specific estimates of harvests • Tier 2: salmon stocks managed as a complex, with specific salmon stocks as indicator stocks • Tier 3: salmon stocks or stock complexes with no reliable estimates of escapement For stocks and stock complexes where escapement is known (Tier 1), or escapement of indicator stocks is thought to be a reliable index for the number of spawners in a stock complex (Tier 2), overfishing is defined as occurring when the fishing mortality rate in the Cook Inlet EEZ Area (F EEZ ) exceeds the maximum fishery mortality threshold (MFMT). The MFMT is defined as the maximum potential fishing mortality rate in the EEZ above which overfishing occurs for Tier 1 and 2 stocks, expressed as an exploitation rate that is assessed over one generation. For Tier 1 and Tier 2 stocks, the Salmon FMP defines the overfishing limit (OFL) as the amount of salmon harvest in the EEZ for the coming year that corresponds with the spawning escapement target not being achieved, based on information available preseason. Acceptable biological catch (ABC) is established based on the OFL. As an ABC control rule, ABC must be less than or equal to OFL, and the SSC may recommend reducing ABC from OFL to account for scientific uncertainty, including uncertainty associated with the assessment of spawning escapement goals, forecasts, harvests, and other sources. The annual catch limit (ACL) for each stock is set equal to ABC. For Cook Inlet salmon, the minimum stock size threshold (MSST)—the level of biomass below which a stock would be considered overfished—is calculated for stocks in Tier 1 and 2 as follows: a stock or stock complex is overfished when summed escapements over a generation fall below one half of summed spawning escapement goals over that generation. For Tier 3 stocks, which have no reliable estimates of escapement, overfishing is defined as occurring when harvest exceeds the OFL. The OFL for Tier 3 stocks is set as the maximum EEZ catch of the stock multiplied by the generation time (years). The result of this calculation is compared against the cumulative EEZ catch of the stock for the most recent generation. The SSC may recommend an alternative catch value for the OFL on the basis of the best scientific information available. As with Tier 1 and 2 stocks, ABC for these stocks must be set less than or equal to the OFL, and may be reduced by a buffer to account for scientific uncertainty. For Tier 3 stocks or stock complexes with escapement goals for a suitable indicator stock, the MSST is calculated the same as for Tier 1 and 2 stocks. For Tier 3 stock complexes without any suitable indicator stocks with escapement goals, it is not possible to calculate MSST. While OFL, ABC, and ACL are calculated based on the best scientific information available preseason when harvest specifications must be established, realized harvest and escapement data are used post-season to determine whether ACLs were exceeded, whether overfishing occurred, and whether any stocks are overfished. Accountability measures are applied to prevent ACL overages and, if they occur, to prevent the recurrence of any ACL overages. Harvest Specifications and Annual Processes Amendment 16 establishes a harvest specification process for the Cook Inlet EEZ Area, along with specific definitions of required status determination criteria using the tier system described in the previous section. A Stock Assessment and Fisheries Evaluation (SAFE) report provides the SSC and Council with a summary of the most recent biological condition of the salmon stocks, including all status determination criteria, and the social and economic condition of the fishing and processing industries. NMFS develops the SAFE report for the Cook Inlet EEZ Area, with public and scientific review through the Council process and public review through publication of the proposed salmon harvest specifications in the Federal Register . The SAFE report summarizes the best available scientific information concerning the past, present, and possible future condition of Cook Inlet salmon stocks and fisheries, along with ecosystem considerations, taking into account any uncertainty. This includes recommendations of OFL, ABC, and MSST that are calculated following the tier system described above. The SAFE report will include a final post-season evaluation of the previous fishing year based on realized catches and escapement with all information needed to make “overfishing” and “overfished” determinations, as well as recommendations to develop harvest specifications for the upcoming fishing year. In providing this information, the SAFE report uses a time series of historical catch for each salmon stock, including estimates of retained and discarded catch taken in the salmon fishery; bycatch taken in other fisheries; catch in State commercial, recreational, personal use, and subsistence fisheries; and catches taken during scientific research ( e.g., test fisheries). The SAFE report also provides information needed to document significant trends or changes in the stocks, marine ecosystem, and fisheries over time, as well as the impacts of management. The SAFE report will be developed to contain economic, social, community, essential fish habitat, and ecological information pertinent to the success of salmon management or the achievement of Salmon FMP objectives. The SSC reviews the SAFE report each year and recommends the OFL, ABC, MFMT, and MSST for each stock or stock complex, which then constrain the maximum allowable harvest for each stock based on biology and scientific uncertainty identified in the assessments. This SSC review constitutes the official peer review of scientific information used to manage the Cook Inlet EEZ Area salmon fishery for purposes of National Standard 1 and for the purposes of the Information Quality Act. Upon review and acceptance by the SSC, the SAFE report, after incorporating any associated SSC comments, constitutes the best scientific information available for purposes of the Magnuson-Stevens Act. Total allowable catches (TACs) are set for the Cook Inlet EEZ commercial salmon fishery. A TAC is a limit on the annual catch of a stock, stock complex, or species that is the management target of the fishery, and operates as an accountability measure that accounts for management uncertainty to ensure total catch remains at or below the ACL for each stock. In the Cook Inlet EEZ, TACs will initially be set at the species level because it is not currently possible to distinguish among individual stocks of the same species when monitoring harvests during the fishing season. TACs are set considering the estimated proportional contributions of each stock to total harvest of a species such that ACLs are not expected to be exceeded for any component stock if all TACs are fully achieved. Because of the uncertainty inherent to estimating the proportional contributions of each stock to total harvest pre-season, species-level TACs are reduced from the combined ACLs of component stocks by an appropriate buffer that accounts for the degree of management uncertainty. NMFS will establish harvest specifications each year by publishing proposed and final salmon harvest specifications in the Federal Register . NMFS will consider public comments on proposed harvest specification prior to making a final decision. If approved, final harvest specifications are issued with any applicable modifications and the agency responses to public comments. Changes From Proposed to Final Amendment 16 After considering public comments, NMFS revised amendment 16 to specify the salmon stocks or stock complexes for which status determination criteria are being established, and, as recommended by the SSC at their February 2024 meeting, to better describe how the OFL would be set preseason. For Tier 1 stocks, the preseason OFL was updated in accordance with the SSC recommendation that it be based solely on the preseason total run size for the coming fishing season (equation 6 within section 4.2.4 of the Salmon FMP) rather than on the generational (multi-year) formula that was defined in equations 8 and 9 of proposed amendment 16. For Tier 3 stocks, the language that describes how the preseason OFL is set was updated in accordance with the SSC recommendation that rather than considering only maximum historical catch, the preseason OFL could also be based on other values such as average or maximum catch for a particular period of time in the catch history. Finally, several technical corrections were also made to improve formatting consistency and to eliminate redundancy in the FMP. Final Rule This final rule modifies Federal regulations to implement amendment 16 by revising the definition of Salmon Management Area at 50 CFR 679.2 to redefine the Cook Inlet Area as the Cook Inlet EEZ Area and incorporate it into the Federal Salmon Management Area. This final rule creates figure 22 to 50 CFR part 679 to show the location of the Cook Inlet EEZ Area. Regulations at § 600.725 are modified to authorize the use of drift gillnet gear for the Cook Inlet EEZ Area commercial salmon fishery. Existing regulations related to salmon fisheries under the Salmon FMP throughout part 679 are moved to subpart J beginning at § 679.110. Management measures necessary for the Cook Inlet EEZ Area are added to subpart J. The following sections provide a summary of management measures implemented by this final rule. Federal Commercial Fishing Season and Fishing Periods Under this final rule, the Cook Inlet EEZ Area commercial drift gillnet fishing season begins each year on either the third Monday in June or June 19, whichever is later. For 2024, the third Monday in June is June 17, so the season will begin on June 19. However, because June 19 falls on a Wednesday—which as described below is not an open fishing period—the first day of fishing in the 2024 Cook Inlet EEZ Area commercial fishing season will be on Thursday, June 20. On or after the season start date, NMFS will open the Cook Inlet EEZ Area for drift gillnet fishing for two, 12-hour periods each week, from 7 a.m. Monday until 7 p.m. Monday, and from 7 a.m. Thursday until 7 p.m. Thursday, a schedule that will continue until July 15 unless a harvest limit (TAC) is reached. From July 16 to July 31, drift gillnet fishing will be open for one 12-hour period per week from 7 a.m. until 7 p.m. on Thursdays, unless a TAC is reached before that time. From August 1 to August 15, the Cook Inlet EEZ Area will again be open for drift gillnet fishing for two, 12-hour periods each week, from 7 a.m. Monday until 7 p.m. Monday, and from 7 a.m. Thursday until 7 p.m. Thursday unless a TAC is reached before that time. The Cook Inlet EEZ Area will be closed to drift gillnet fishing when the TAC is reached, or on August 15, whichever comes first. Inseason Management for Commercial Fishing NMFS will actively monitor and manage the commercial salmon fishery in the Cook Inlet EEZ Area throughout the fishing season by exercising the inseason management authorities described in this rule. In regulations at § 679.118(c)(1)(i), this final rule provides NMFS the authority to prohibit commercial salmon fishing in the Cook Inlet EEZ Area. In regulations at § 679.25, this final rule provides NMFS inseason authority to adjust a TAC for any salmon species or stock and to close or open the Cook Inlet EEZ Area as necessary to prevent overfishing or prevent underharvest of a TAC for any species or stock (assuming there are no countervailing conservation concerns regarding co-occurring species or stocks). Fishing will occur during the regularly scheduled fishing periods described above. Throughout the fishing season, NMFS will project the additional harvest expected from each additional opening of the fishery based on the number of participating vessels, catch rates, and any other available information. NMFS will close the Cook Inlet EEZ Area to commercial fishing for salmon if projections indicate that an additional fishery opening is expected to exceed any specified TAC. NMFS will implement inseason management actions through publication in the Federal Register , consistent with the Administrative Procedure Act (APA). NMFS will monitor all available sources of information during the fishery to evaluate whether the TAC remains appropriate. If the best scientific information available indicates that the number of salmon returning to Cook Inlet is significantly different than what was forecasted, NMFS may adjust management of the fishery using the adjustment authorities described above and specified in regulations at § 679.25. If significantly fewer fish return relative to the forecast, NMFS may close the fishery before a TAC is reached or before the season closure date to prevent overfishing. This may be determined based on fishery catches, test-fishery catches, escapement, or other scientific information. NMFS may also consider an inseason adjustment to modify the TAC if scientific information indicates that salmon abundance is significantly higher than forecasted. To implement any inseason adjustment, NMFS publishes a temporary rule in the Federal Register and considers all public comments on the action. Any such action must not result in overfishing on any other co-occurring fish stocks and will also consider the potential impacts of such an action to all Cook Inlet salmon harvesters. NMFS could not adjust the TAC above any ABC or allowable de minimis amounts set forth in the harvest specifications established for the Cook Inlet EEZ Area in that fishing year without engaging in notice and comment rulemaking to amend the harvest specifications. NMFS will use the authorities described above to achieve conservation and management goals. These tools may be used to either increase or decrease harvests in the Cook Inlet EEZ Area drift gillnet fishery as appropriate based on the specified TAC amounts, the amount already harvested, and other available information on inseason salmon abundance. Federal Management Area The management area is all Federal waters of upper Cook Inlet (EEZ waters of Cook Inlet north of a line at 59°46.15′ N). Retention of Bycatch Drift gillnet vessels fishing in the Cook Inlet EEZ Area may retain and sell non-salmon bycatch including groundfish ( e.g., Pacific cod, pollock, flounders, etc. ) if they have a groundfish Federal fisheries permit (FFP). These are referred to as incidental catch species and this final rule allows retention of these species up to a specified maximum retainable amount (MRA). Drift gillnet vessels retaining non-salmon incidental catch species are also required comply with all State requirements when landing these fish in Alaska. The MRA of an incidental catch species is calculated as a proportion (percentage) of the weight of salmon on board the vessel. Table 10 to 50 CFR part 679 establishes MRA percentages in the Gulf of Alaska (GOA) and applies to the Cook Inlet EEZ Area. For commercial salmon fishing in the Cook Inlet EEZ Area, the basis species are salmon, which is classified as “Aggregated amount of non-groundfish species” in the table for the purposes of the calculation. To obtain the MRAs for each incidental catch species, multiply the retainable percentage for the incidental catch species from table 10 by the round weight of salmon (Basis Species: Aggregated amount of non-groundfish species) on board. For example, if there were 100 pounds (45.36 kg) of salmon aboard the vessel, then 20 pounds (9.07 kg) of pollock and 5 pounds (2.27 kg) of aggregated rockfish could be retained, because pollock has a retainable percentage of 20 and aggregated rockfish has a retainable percentage of 5 in table 10 when the basis species is the aggregated amount of non-groundfish species ( i.e. salmon). Pacific halibut are not defined as a groundfish and may not be retained by drift gillnet vessels. Cook Inlet EEZ Area Commercial Salmon Fishing Monitoring, Recordkeeping, and Reporting Requirements This action manages the Cook Inlet EEZ Area salmon fishery separately from the adjacent State waters salmon fisheries. Recordkeeping and reporting requirements for commercial salmon fishing vessels operating in the Cook Inlet EEZ Area are specified at § 679.115. This final rule requires processors to report all landings of Cook Inlet salmon harvested in the EEZ through eLandings by noon of the day following completion of the delivery. Commercial salmon fishing vessels, processors, and other entities receiving deliveries of Cook Inlet EEZ Area salmon ( i.e., fish transporters, catcher sellers, and direct marketers) must obtain Federal permits and comply with Federal recordkeeping, reporting, and monitoring requirements consistent with regulations at § 679.114. While operating, all entities required to have any Federal salmon permit(s) for the Cook Inlet EEZ Area must have a legible copy of each valid permit in either paper or electronic format. Requirements for Commercial Salmon Fishing Vessels Harvesting vessel owners are required to obtain a Salmon Federal Fisheries Permit (SFFP). NMFS will issue SFFPs at no charge to the owner or authorized representative of a vessel. An SFFP will authorize a vessel of the United States to conduct commercial salmon fishing operations in the Cook Inlet EEZ Area, subject to all other Federal requirements. An SFFP applicant must be a citizen of the United States. NMFS will issue SFFPs after receipt, review, and approval of a complete SFFP application. SFFPs will have a 3-year application cycle. Once a vessel owner or authorized representative obtains an SFFP, it is valid until the expiration date shown on the permit, which is after 3 years if issued at the beginning of a permit cycle. Participants must maintain a physical or electronic copy of their valid SFFP aboard the named vessel. As with other Federal fisheries, if a vessel owner or authorized representative surrenders an SFFP, they could not obtain a new SFFP for that vessel until the start of the next 3-year permit cycle. The SFFP is associated with a specific vessel and not transferable to another vessel. If the vessel is sold, the new owner will need to apply for an SFFP amendment from NMFS to reflect the new owner or authorized representative of the vessel. A vessel could not operate in the Cook Inlet EEZ Area fishery until the SFFP amendment was complete and the amended SFFP issued. The SFFP number is required to be displayed on the vessel's hull and buoys attached to the vessel's drift gillnet. For a vessel being leased, the vessel operator is considered the authorized representative of the SFFP holder and no amendments to the permit are required. The vessel operator is subject to all SFFP requirements and limitations and liable for any violations. This final rule requires commercial salmon fishing vessels to operate a Vessel Monitoring System (VMS) as specified at § 679.28(f)(6)(x). VMS transmits the real-time GPS location of fishing vessels to NMFS. A vessel with an SFFP is required to keep VMS active at all times when operating with drift gillnet gear on board in the waters of Cook Inlet any day the Cook Inlet EEZ Area is open to commercial salmon fishing. This includes when operating within State waters to ensure that entire fishing trips are monitored and to help verify that no fishing occurred within State waters during a fishing trip that included salmon harvest in the Cook Inlet EEZ, or that a vessel with an SFFP does not fish in Federal waters during the same calendar day it fishes in State waters. To collect catch and bycatch information, this final rule requires vessels to use a Federal fishing logbook as specified at § 679.115(a)(1). Commercial salmon fishing vessels will record the start and end time and GPS position of each set, as well as a count of the catch and bycatch. Logbook sheets are submitted electronically to NMFS by the vessel operator when the fish are delivered to a processor. The data provided by the logbooks will provide information to satisfy the Magnuson-Stevens Act Standardized Bycatch Reporting Methodology (SBRM) requirement (16 U.S.C. 1853(a)(11)). State requirements, including possession of appropriate State Commercial Fisheries Entry Commission (CFEC) permit(s), continue to apply for drift gillnet vessels landing salmon or other species caught in the EEZ within the State or entering State waters. This final rule prohibits commercial salmon fishing vessels from landing or otherwise transferring salmon caught in the Cook Inlet EEZ Area within the EEZ off Alaska. Commercial salmon fishing vessels delivering to tenders may deliver salmon caught in the Cook Inlet EEZ Area only to a tender vessel operating in State waters. This final rule prohibits processing (as defined by Federal regulations at § 679.2) salmon harvested in the Cook Inlet EEZ Area in the EEZ off Alaska in order to ensure historical participants and operation types are not displaced. Commercial salmon fishing vessels are allowed to gut, gill, and bleed salmon prior to landing but cannot freeze or further process salmon prior to landing their catch (freezing is considered processing per Federal regulations at § 679.2 and therefore is prohibited in Cook Inlet EEZ waters). Requirements for Processors and Other Entities Receiving Deliveries of Commercially Caught Cook Inlet EEZ Salmon This final rule requires processors that receive and process landings of salmon that are caught in the Cook Inlet EEZ Area by a vessel authorized by an SFFP to obtain a Salmon Federal Processor Permit (SFPP). This includes any person, facility, vessel, or stationary floating processor that receives, purchases, or arranges to purchase and processes unprocessed salmon harvested in the Cook Inlet EEZ Area, except registered salmon receivers. Persons or businesses that receive landings (deliveries) of Cook Inlet EEZ salmon from harvesting vessels but do not immediately process it, or transport it to another location for processing, are required to obtain a Registered Salmon Receiver Permit (RSRP). If a tender vessel or vehicle receiving deliveries of salmon is operated by an SFPP holder, it may operate under the SFPP and does not need to obtain an RSRP. SFPP and RSRP holders may not receive deliveries or process salmon that were harvested in the Cook Inlet EEZ Area while in the Cook Inlet EEZ Area or any EEZ waters. SFPP and RSRP holders are required to report all salmon landings through eLandings by noon of the day following completion of the delivery. Landings must be reported using existing Cook Inlet drift gillnet statistical areas, with the addition of an EEZ identifier and a requirement to identify the Federal permit associated with each landing. NMFS issues SFPPs and RSRPs on a 1-year cycle. If the ownership of an entity holding a SFPP or RSRP changes, the new owner will need to submit an application for an amended permit. An amended permit is issued with a new permit number to reflect the change. Because SFPPs are facility-specific, one SFPP is required for every processing facility, even if a facility is controlled by a company already holding an SFPP for another processing facility. An RSRP is required for each entity receiving but not processing landings of Cook Inlet EEZ salmon at the location of the delivery if they are not operated by an SFPP holder. If a single entity operates multiple vehicles or vessels receiving landings of Cook Inlet EEZ salmon, each one of those vehicles or vessels could use the RSRP held by the entity. This includes fish transporters or buying stations unaffiliated with an SFPP holder that receive deliveries directly from harvesting vessels. For direct-marketing operations where the owner or operator of a commercial salmon fishing vessel catches and processes their catch, both an SFFP and an SFPP are required. For catcher-seller operations where the owner or operator of a harvesting vessel catches and sells unprocessed salmon ( e.g., whole fish or headed and gutted) directly to someone other than an SFPP or RSRP holder, both an SFFP and an RSRP are required. Other Commercial Fishing Management Measures and Prohibitions This final rule defines the legal gear for the Cook Inlet EEZ Area drift gillnet fishery consistent with legal gear in the State waters drift gillnet fishery, to the extent practicable (see § 679.118(f)). Legal drift gillnet gear is no longer than 200 fathoms (365.76 m) in length, 45 meshes deep, and has a mesh size no greater than 6 inches (15.24 cm). Buoys at each end of the drift gillnet must be marked with the participant's SFFP number. Gillnets will be measured, either wet or dry, by determining the maximum or minimum distance between the first and last hanging of the net when the net is fully extended with traction applied at one end only. It is illegal to stake or otherwise fix a drift gillnet to the seafloor. The float line and floats of drift gillnets must float on the surface of the water while the net is fishing, unless natural conditions cause the net to temporarily sink. This final rule includes the following prohibitions specified at § 679.117 for drift gillnet fisheries in the Cook Inlet EEZ Area: • Vessels are prohibited from fishing in both State and Federal waters on the same day, or otherwise having on board or delivering fish harvested in both EEZ and State waters, to ensure accurate catch accounting for Federal managers. • Vessels cannot have salmon harvested in any other fishery on board. • Vessels are prohibited from having gear in excess of the allowable configuration or deploying multiple nets. • Vessels are prohibited from participating in other fisheries while operating drift gillnet gear for salmon in the Cook Inlet EEZ Area and are not allowed to have other fishing gear on board capable of catching salmon while commercial fishing for salmon in the Cook Inlet EEZ Area ( i.e., operating drift gillnet gear). • Because vessels legally participating in adjacent State water salmon fisheries may transit across the Cook Inlet EEZ Area, vessels can have other fishing gear on board while moving through the Cook Inlet EEZ Area, but are prohibited from commercial fishing for salmon within the Cook Inlet EEZ Area on any day they are participating in State water salmon fisheries. • Manned or unmanned aircraft cannot be used to locate salmon or otherwise direct fishing. • Vessels are prohibited from discarding any salmon caught while harvesting salmon using drift gillnet gear in the Cook Inlet EEZ Area. • Vessels are prohibited from commercial or recreational fishing for salmon in the Cook Inlet EEZ Area contrary to notification of inseason action, closure, or adjustment issued under § 679.25 or § 679.118. Cook Inlet EEZ Recreational Fishing Management Measures This final rule includes management measures for recreational salmon fishing in the Cook Inlet EEZ Area as specified at § 679.119. NMFS establishes bag and possession limits in Federal regulations. For Chinook salmon, from April 1 to August 31, the bag limit is one Chinook salmon per day including a total limit of one in possession of any size. From September 1 to March 31, the bag limit is two Chinook salmon per day including a total limit of two in possession of any size. For coho (silver) salmon, sockeye salmon, pink salmon, and chum salmon there is a combined six fish bag limit per day, including a total limit of six in possession of any size. However, only three fish per day, including a total limit of three in possession, may be coho salmon. In addition to Federal bag limits, recreational anglers are constrained by State bag and possession limits if landing fish in Alaska. Because of this, an angler cannot exceed State limits when landing fish in Alaska, or otherwise have both an EEZ limit and a State limit on board at the same time in either area. Recreational fishing is open for the entire calendar year. In regulations at § 679.118(c)(1)(ii), this final rule provides that NMFS may prohibit, through an inseason management action, retention of individual salmon species while still allowing harvest of other salmon species if necessary. In addition to prohibiting retention, NMFS may also prohibit fishing for one or more salmon species if required for conservation. Inseason management actions for the recreational sector will be published in the Federal Register and subject to the same process and timing limitations outlined for the commercial sector in the Cook Inlet EEZ. Recreational fishing for salmon in the Cook Inlet EEZ Area may only be done using hook and line gear with a single line per angler with a maximum of two hooks. Salmon harvested must not be filleted or otherwise mutilated in a way that could prevent determining how may fish had been retained prior to landing. Gills and guts may be removed from retained fish prior to landing. Any salmon that is not returned to the water with a minimum of injury counts toward an angler's bag limit. Federal managers will review any available developing inseason information, including escapement data, and may prohibit retention of one or more salmon species if additional harvest could not be supported. This final rule does not establish a TAC specific to the recreational sector because the recreational harvest in the Cook Inlet EEZ has been small historically (less than 100 fish per year), but estimated removals in combination with commercial harvests are evaluated against the ACL to ensure they are not exceeded and to implement accountability measures, if required, for future seasons. The State's existing Saltwater Charter Logbook, the Statewide Harvest Survey, and creel surveys provide the information needed to account for recreational harvest in the Cook Inlet EEZ Area, as well as satisfy the Magnuson-Stevens Act SBRM requirement. Changes From Proposed to Final Rule In response to public comment, this final rule modifies the number of commercial salmon fishing periods in the Cook Inlet EEZ Area. The commercial fishing season was proposed to extend from approximately June 19 to August 15 each year, with two, 12-hour fishing periods each week. Overall, public comments highlighted a conservation and management concern associated with allowing two days of harvest per week between July 16 and July 31. Under the status quo of State management, this is the time period during which there has been a single drift gillnet opener per week in order to allow salmon bound for Northern Cook Inlet to pass through Federal waters (a management option many public commenters referred to as a “conservation corridor”). The State requested that NMFS close the EEZ to all commercial fishing after July 15 to avoid conservation concerns, including stocks not achieving spawning escapement goals. In addition, multiple Alaska Native tribes from the Cook Inlet region, communities in Northern Cook Inlet, and regional sportfishing organizations all expressed concern that two fishery openings per week from July 16-July 31—which would provide significantly more fishing opportunity to the drift gillnet fleet—was likely to result in conservation concerns when compared to the status quo of one opening per week during this time period (see Comment 34). In all, these comments emphasized that reducing drift gillnet openings to one per week from July 16-July 31 is a management measure important to stakeholders and Alaska Native tribes in Northern Cook Inlet because it gives salmon stocks of lower abundance more opportunities to pass through the EEZ during the time period they are most likely to be present in Federal waters. In light of the public comments identifying significant potential conservation concerns, NMFS reviewed information contained in the Analysis and 2024 SAFE report to further consider the potential impacts that could result from increased commercial fishing opportunity during this late-July migratory period. State management measures that limited drift gillnet fishing effort in the Cook Inlet EEZ began in 2015. As described in section 3.1.2 of the Analysis, under Federal reference points, overfishing likely occurred on “other sockeye salmon” in 2008, and on Cook Inlet coho salmon in 2013. Both of these stock complexes have substantial components that originate from the Northern District. Overfishing is not thought to have occurred on any stock since the State began restricting fishing in the EEZ in late July. Susitna (Yentna) River sockeye salmon were declared a State stock of concern in 2008 after repeated failures to meet escapement goals. After subsequent restrictions to fishing, including the reductions to EEZ fishing opportunities in late July, this stock met escapement goals to the point where it was delisted from being a stock of concern by the State of Alaska's Board of Fisheries (BOF) in 2020. Given the historical evidence suggesting an increased likelihood of conservation concerns for these stocks when there is additional EEZ fishing effort from July 16 until July 31, and because some salmon stocks have continued to miss spawning escapement goals during recent years when there was only a single drift gillnet opening per week from July 16-July 31, NMFS has determined that it would be unwise to increase the number of fishing periods in late July from the status quo. Therefore, this final rule reduces the proposed number of openings to one per week during this period. The final rule, however, does not adopt the State's request to close the EEZ July 15. As explained in this final rule, the fishery will be open for one opening per week July 16-July 31 and two openings per week August 1-August 15, unless a TAC is reached. NMFS expects that one opening per week in late July will allow for the harvest of surplus yield to the extent practicable while still achieving spawning escapement goals in most years. If TACs allow for additional harvest in August, the fishery will return to two openings per week from August 1 to August 15. This approach is expected to reduce the risk of higher than expected harvests in the EEZ that could result in overfishing or reduce or eliminate the harvestable surplus of one or more salmon stocks for all other salmon users in Cook Inlet. Further, NMFS expects this change will better allow the drift gillnet fleet to target the stocks of highest abundance while reducing the risk of early closures because a TAC is reached for a stock of lower abundance. As explained above and in the preamble to the proposed rule, the Cook Inlet EEZ salmon fishery will be managed using TACs. Allowing salmon stocks of lower abundance bound for Northern Cook Inlet more opportunities to pass through the EEZ in July—particularly coho and Chinook salmon—means it is less likely the fishery will close early due to reaching the TAC for a stock of lower abundance before the drift gillnet fleet is able to harvest the TAC for abundant sockeye salmon. Additionally, spreading out the sockeye salmon harvest throughout the season by reducing fishing periods in late July will reduce pressure on Northern District sockeye salmon—which are Tier 3 stocks with less known conservation status—as more of the salmon in the EEZ in August are expected to be from the highly abundant Tier 1 Kenai and Kasilof stocks for which there is better information to inform inseason management decisions. In this final rule, NMFS also clarified language at § 679.28(f)(6)(x) to clearly define when and where VMS is required to be used by vessels named or required to be named on a SFFP. An operational and transmitting VMS unit that complies with the requirements in § 679.28(f) must be carried by any such vessel operating in the waters of Cook Inlet with drift gillnet gear on board during a calendar day when commercial salmon fishing is authorized in the Cook Inlet EEZ Area. The corresponding prohibition at § 679.117(b)(1)(xiv) is similarly revised to prohibit operation contrary to requirements specified at § 679.28(f)(6)(x). This final rule also adds a definition of the “waters of Cook Inlet” at § 679.2. For purposes of §§ 679.28(f)(6)(x) and 679.117(b)(1)(xiv), the waters of Cook Inlet includes all waters north of a line from Cape Douglas (58°51.10′ N) to Point Adam (59°15.27′ N). In sum, these changes from proposed to final regulations clarify that the VMS requirement for SFFP holders applies: (1) on days when directed fishing for salmon using drift gillnet gear is open in the Cook Inlet EEZ Area; (2) if the vessel has drift gillnet gear on board the vessel or deployed; and (3) if the vessel is operating in the waters of Cook Inlet. This final rule also modifies regulations at § 679.118(c)(1)(ii) to provide NMFS the authority to prohibit fishing for one or more salmon species if required for conservation. While the recreational salmon fishery in the Cook Inlet EEZ Area is extremely small, this would give NMFS all management tools potentially required to conserve stocks at very low abundance. The most likely potential need for this authority is because declines in Chinook salmon abundance have, in some cases, entirely eliminated the harvestable surplus of Chinook ( i.e., escapement goals cannot be achieved even if no fish are harvested). In this instance, even the limited mortality resulting from catch and release fishing ( i.e., what would be allowed under a prohibition on retention) could potentially result in exceeding an ABC/ACL. NMFS would also maintain the authority to prohibit retention of one or more species if a closure to salmon fishing was not required to achieve conservation objectives or avoid exceeding an ABC/ACL. Additionally, this final rule adds two new prohibitions to § 679.117 to clarify that it is unlawful for any person to: (1) engage in commercial fishing for salmon in the Cook Inlet EEZ Area contrary to notification of inseason action, closure, or adjustment issued under §§ 679.25 and 679.118 (see § 679.117(b)(1)(xvi)); or (2) engage in recreational fishing for salmon in the Cook Inlet EEZ Area contrary to notification of inseason action, closure, or adjustment issued under § 679.118 (see § 679.117(b)(2)(v)). The final rule also makes clarifying edits to § 679.117(b) as follows: (1) moves “of the Salmon Management Area, defined at § 679.2 and Figure 22 to this part,” from § 679.117(b)(1)(ii), to § 679.117(b)(1)(i), which is the first time the term “Cook Inlet EEZ Area” appears in § 679.117(b)(1); (2) replaces the word “set” in § 679.117(b)(1)(v), and replaces it with “deploy”; and (3) adds the term “Cook Inlet EEZ Area” to two prohibitions applicable to recreational fishing (see § 679.117(b)(2)(ii) and (iii)). Throughout the regulatory text, NMFS also made technical and grammar edits to correct regulatory cross references, use consistent terms, remove redundancy, and promote clarity. One additional change from the proposed rule was removing a proposed requirement that any interactions or entanglements with marine mammals would be required to be recorded in the logbook. NMFS determined that this requirement would be duplicative with and may be confused with existing reporting requirements under the Marine Mammal Authorization Program and has therefore removed the requirement from this final rule. Participants are, however, still required to report marine mammal interactions under the Marine Mammal Authorization Program. Comments and Responses NMFS received 87 comment submissions on amendment 16 and the proposed rule. NMFS has summarized and responded to 95 unique and relevant comments below. The comments were from individuals, environmental groups, local governments, the Alaska Department of Fish and Game (ADF&G), sportfishing organizations, fishing guides, tribes and tribal members, drift gillnet fishermen, and commercial fishing organizations. Several comment submissions were duplicates or addressed topics outside the scope of amendment 16 and the proposed rule. Overall, there was a mix of support and opposition, with those comments opposing the rule expressing concerns about expanding Federal management to salmon fisheries, impacts to adjacent state salmon fisheries, the cost and burden of monitoring requirements, adverse economic impacts, preseason catch limits, the prohibition on fishing in both state and Federal waters on the same day, and underharvest (exceeding spawning escapement goals). The vast majority of commenters supported some version of Federal management (mostly drift gillnet fishers, commercial processors, and tribal groups), and a small minority opposed any type of Federal management. Comments are organized by topic into the following categories: • Scope of the Fishery Management Plan • National Standard 1 • Status Determination Criteria and Annual Catch Limits • Inseason Management • Cook Inlet EEZ Commercial Salmon Fishing Management Measures • Federal Commercial Fishing Season and Fishing Periods • Monitoring, Recordkeeping, and Reporting Requirements • Other Commercial Salmon Fishing Management Measures and Prohibitions • Recreational Fishing • National Standard 2 • National Standard 3 • National Standard 4 • National Standards 5 and 7 • National Standard 8 • National Standard 10 • Economic Impacts • General Support • General Opposition • Tribal Comments • Marine Mammals • Process Concerns • Other Scope of the Fishery Management Plan Comment 1: NMFS's decision to limit the scope of Federal management to the Cook Inlet EEZ violates UCIDA v. NMFS, 837 F.3d 1055 (9th Cir. 2016), in which the Ninth Circuit Court of Appeals held that NMFS must manage the entire “fishery,” including State waters. Response: NMFS disagrees that the Ninth Circuit's decision requires this FMP to cover both State and Federal waters. Rather, limiting NMFS management solely to Federal waters ( i.e., the Cook Inlet EEZ) is consistent with the court's decision in UCIDA v. NMFS. In that case, UCIDA challenged amendment 12 to the Salmon FMP, which had excluded the Cook Inlet EEZ from the Salmon FMP. The Ninth Circuit considered only whether NMFS had the legal authority to exclude portions of the EEZ from the FMP. In ruling against NMFS, the Court held that NMFS must include the Cook Inlet EEZ in the Salmon FMP because it has an obligation to issue an FMP for each fishery under its authority that requires conservation and management. The phrase “under its authority” was critical to that Ninth Circuit decision, which considered whether a State could manage a fishery in Federal waters outside the context of an FMP. Nothing in UCIDA v. NMFS implied that a Federal FMP must cover fishing that occurs in State waters if a harvested stock occurs in both State and Federal waters. Not only was that question not before the Ninth Circuit, but requiring NMFS to manage in State waters through an FMP would violate the plain language of Magnuson-Stevens Act section 306(a), which provides that states retain management jurisdiction over fishing in state waters. In fact, the Ninth Circuit explicitly recognized that the Cook Inlet EEZ constitutes a fishery, stating that “the statute requires an FMP for a fishery, a defined term,” and adding “[n]o one disputes that the exempted area of Cook Inlet”— i.e. the Cook Inlet EEZ—“is a salmon fishery.” 837 F.3d at 1064. The portion of Cook Inlet at issue in the litigation over amendment 12 was the Cook Inlet EEZ, not all of Cook Inlet. In this action, NMFS is complying with the Ninth Circuit's decision by incorporating the very “fishery” at issue in that case—the Cook Inlet EEZ salmon fishery—into the Salmon FMP. Comment 2: NMFS's decision to limit the scope of Federal management to the Cook Inlet EEZ violates the plain language of the Magnuson-Stevens Act. The term “fishery,” as defined within section 3 of the Magnuson-Stevens Act, requires that amendment 16 include a definition of “fishery” that extends throughout the range of salmon in Cook Inlet, including State waters. Response: NMFS disagrees that its definition of the “fishery” violates the Magnuson-Stevens Act. As explained in the preamble to the proposed rule and the response to Comment 1, the “fishery” that is subject to Federal management under amendment 16 are the salmon stocks harvested by the commercial and recreational fishing sectors within the Cook Inlet EEZ Area. Defining the fishery as geographically constrained to the Cook Inlet EEZ is consistent with the Magnuson-Stevens Act. Section 3 of the Magnuson-Stevens Act broadly defines a “fishery” as one or more stocks of fish that can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and any fishing for such stocks. NMFS has determined that salmon stocks in the Cook Inlet EEZ can be treated as a unit for purposes of conservation and management because they all fall within the geographical management area under NMFS's jurisdiction, the best scientific information available supports NMFS's determination that the EEZ has unique ecological characteristics due to the mixed stock nature of fishing in the EEZ, and fishing for these stocks in the EEZ has distinct technical and economic characteristics that distinguish it from State water fisheries, as discussed in the response to Comment 55. The Magnuson-Stevens Act expressly limits the management authority of NMFS and the Council to the EEZ, with a narrow exception. Section 101(a) of the Magnuson-Stevens Act establishes the Nation's sovereign rights and exclusive fishery management authority over all fish and all Continental Shelf fishery resources within the EEZ. Section 3(11) of the Magnuson-Stevens Act defines the inner boundary of the EEZ as a line coterminous with the seaward boundary of each of the coastal States. Section 302(a)(l)(G) states that the Council has authority over the fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska. Because Alaska's seaward boundary is 3 nautical miles (nmi) (5.56 kilometers) from its coast (3-nmi boundary line), 43 U.S.C. 1301(b), the inner boundary of the EEZ, and therefore the Council's authority, starts 3 nmi (5.56 kilometers) from the Alaskan coast and extends to the outer boundary of the EEZ 200 nmi (370.4 kilometers) seaward of the coast of Alaska. In section 306, the Magnuson-Stevens Act expressly states that it shall not be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries. Therefore, the Magnuson-Stevens Act does not contemplate the extension of Federal authority into State waters, except under the very limited circumstances described in section 306(b) (discussed further in the response to Comment 4 ). In sum, given the geographic limits placed on NMFS's authority to manage fisheries, it is necessary for the “fishery” to be geographically constrained to the EEZ. Comment 3: NMFS's decision to define the fishery as geographically constrained to the Cook Inlet EEZ is arbitrary. There cannot be two adjacent management schemes for salmon; one in Federal waters and one in State waters, because one management scheme will always depend on the other. Salmon management depends on escapement goals. That means an FMP for just the EEZ will always depend on the State which sets the escapement goals. Response: Defining the fishery as geographically constrained to the Cook Inlet EEZ is not arbitrary; it is required by the Magnuson-Stevens Act and is consistent with fisheries management throughout the EEZ off Alaska and throughout the U.S. Nearly all stocks harvested in the EEZ nationwide also occur in State waters, but as explained in the response to Comment 2, the Magnuson-Stevens Act explicitly left jurisdiction over state waters to the states. Recognizing Federal and State jurisdictional boundaries is a foundational principle in the management of natural resources that straddle jurisdictions in the U.S. In mining, forestry, oil, gas, and fisheries, the location of the activity determines the applicable regulations, even if the relevant resource is also present in an adjacent jurisdiction. Furthermore, this is consistent with the management approach for other fisheries off Alaska. For example, in the GOA, the State manages fisheries for pollock and Pacific cod in State waters and NMFS manages pollock and Pacific cod fisheries in Federal waters. For these fisheries, the State determines when State waters will be open to fishing for pollock and Pacific cod, while the Council recommends and NMFS makes those determinations for the EEZ, taking into account any anticipated harvest in State waters. Similar to the Federal management of the Cook Inlet EEZ, the Pacific Fishery Management Council's Salmon FMP expressly limits Federal management to the fisheries in EEZ waters. That FMP covers salmon stocks caught in the EEZ off the coasts of Washington, Oregon, and California. NMFS disagrees that a stock of anadromous fish cannot be successfully managed by different adjacent management regimes. NMFS and State management agencies regularly have separate fisheries that harvest the same stocks of fish. Management will be coordinated to the extent practicable. NMFS will establish catch limits for the Cook Inlet EEZ that are based on achieving escapement goals as defined in the Federal stock assessment, while accounting for both State and Federal expected harvests. There are cooperative management arrangements where a single management agency can make decisions for both State and Federal waters. But these are dependent on a mutually accepted delegation of management authority or international treaties. For example, NMFS's management jurisdiction over the Bering Sea and Aleutian Islands king and Tanner crab fisheries is limited to the Bering Sea and Aleutian Islands Area EEZ, but because the Council recommended delegated management of the EEZ to the State through the Crab FMP—and NMFS determined State management was consistent with the FMP and the Magnuson-Stevens Act—the State executes delegated management actions for crab stocks in Federal waters while also managing these stocks within State waters. While there is often coordination between NMFS and the State to ensure that fishery management decisions achieve the common goal of sustainability, State and Federal authority remains constrained by jurisdictional limits. Management of the Salmon FMP's East Area is different from the management of salmon in the Cook Inlet EEZ Area because of both the delegation of management authority to the State and the Pacific Salmon Treaty. Management of the salmon commercial troll and recreational fisheries in the East Area EEZ occurs across the State and EEZ boundary because the Council voted to delegate management of the salmon fisheries in the East Area EEZ to the State, the State was willing to accept such a delegation of authority, and NMFS determined State management was consistent with both the Salmon FMP and the Magnuson-Stevens Act. The Council and NMFS considered delegating management of the Cook Inlet EEZ to the State, similar to the arrangement in the East Area. However, the State refused to accept delegated management on two occasions and NMFS has no authority to compel a state to accept such delegation. As a result, there is no alternative to having separately managed salmon fisheries in Cook Inlet, and the State and Federal fisheries are separated along the jurisdictional EEZ boundary. Comment 4: Even if states generally retain jurisdiction over state waters pursuant to Magnuson-Stevens Act 306(a), here Magnuson-Stevens Act 306(b) requires NMFS to preempt State management and assert management authority over salmon fishing in the state waters of Cook Inlet. Response: NMFS disagrees that Magnuson-Stevens Act section 306(b) requires NMFS to assert management jurisdiction over the State waters of Cook Inlet and/or implement management measures for State waters through this FMP amendment. Magnuson-Stevens Act section 306(b) includes two criteria that must both be met before NMFS can assert management authority over fishing in State waters: (1) the fishery must occur predominantly in the EEZ and (2) after notice and opportunity for a hearing, the Secretary must determine that a State is “substantially and adversely” affecting the carrying out of an FMP. Even when these criteria are met, Magnuson-Stevens Act section 306(b) explicitly states that NMFS cannot assert management authority over internal (fresh) waters, meaning the scope of Magnuson-Stevens Act section 306(b) is narrower than claimed by the commenter even when it does apply. Historically, the State has managed salmon fishing in Cook Inlet as a single fishery with no distinction between State and Federal waters. Under State management, approximately 75 percent of total upper Cook Inlet salmon harvests occurred in State waters. NMFS has previously determined that the State-managed fishery did not occur predominantly in the EEZ, and thus for that reason alone it had no basis for asserting management authority over State waters under Magnuson-Stevens Act section 306(b)(1)(A). In addition, NMFS has consistently found that State management is consistent with Magnuson-Stevens Act requirements and the goals and objectives of the FMP. Thus, both criteria for preemption under Magnuson-Stevens Act section 306(b) have not been satisfied. As a result of litigation brought by drift gillnet fishermen, among others, status quo management as a single fishery by the State is no longer possible. NMFS acknowledges that amendment 16 will create a new fishery in Cook Inlet, which will occur entirely within Federal waters. Even assuming the 306(b)(1)(A) criteria was met for the Cook Inlet EEZ salmon fishery after implementation of amendment 16—though total harvest of Cook Inlet salmon stocks will continue to occur predominantly within State waters—for NMFS to assert management jurisdiction over State waters it would also have to determine that State management “substantially and adversely” affects implementation of the Salmon FMP, after notice and opportunity for a hearing. The procedures and requirements for notice and the hearing at 50 CFR part 600, subpart G are prescriptive, none have occurred here, and NMFS has no basis to begin proceedings at this time. No fishing has yet occurred under amendment 16 to the Salmon FMP and this final rule, and NMFS has no information that suggests that State action or inaction will prevent the Council or NMFS from carrying out the management measures and management objectives specified in amendment 16. Thus, the criteria for preemption under Magnuson-Stevens Act section 306(b)(1)(B) has not been satisfied. Comment 5: Every other FMP in Alaska sets management measures, including ACL and TAC, for the fishery in both State and EEZ waters. The King Crab closure around Kodiak Island does not allow the fishery in State waters to continue without direction, nor does the Pacific Cod TAC in the GOA apply for the EEZ waters only with the State waters fishery unregulated; the same is true for every other stock of fish except salmon. For the Salmon FMP, NMFS is trying to make us believe the rules governing this fishery are different, even after the Federal court decision that have determined they are not. Response: NMFS disagrees. Federal ACLs and TACs are not established for State waters in other Federal FMPs. The BOF has established State managed fisheries in State waters, for example, the GOA Pacific cod fishery that the State manages by setting a guideline harvest level (GHL) outside the Federal harvest specifications process. For some fisheries, the BOF bases the GHL amount on a percentage of the Federal ABC. However, the GHL fishery is managed by the State. To comply with the Federal ACL regulations and National Standard 1 guidelines, NMFS manages Pacific cod in Federal waters to ensure the sum of all State waters and Federal waters Pacific cod removals from the GOA do not exceed the Federal Pacific cod ABC (and therefore ACL) for the GOA. Accordingly, each year the Council recommends, and NMFS approves, a TAC in the GOA that is set at an amount to accommodate the State's GHL for the Pacific cod caught in State waters. This is consistent with the Magnuson-Stevens Act and National Standard guidelines that direct, as a fundamental component of sustainable fisheries management, that catch should not exceed the ACL and that all sources of mortality from fishing activities should be evaluated for stock status and specification of Federal harvest limits. If the State changed the applicable State waters GHL, there are no limits on the amount of Pacific cod that may be harvested in State waters, and NMFS would adjust the Federal TAC accordingly to ensure that total Pacific cod removals do not exceed the Federal Pacific cod ABC and ACL. In other words, as under amendment 16, the Federal TAC accounts for State water harvest but does not constrain or limit State water harvest. The commenter also appears to reference the State Pacific cod parallel fishery. In this parallel fishery, some of the Federal TAC is harvested in State waters, under State regulations generally mirroring those used in Federal waters. NMFS does not establish a TAC for State waters or manage in State waters; rather, NMFS deducts catch in the parallel fishery from the Federal TAC per a longstanding arrangement that ensures this fishery does not create conservation concerns. The State originally developed and implemented parallel fisheries to provide fishing opportunities within State waters before the State had capacity and expertise to independently develop and manage State water groundfish fisheries (GHL fisheries). While the State has since developed State-managed groundfish fisheries, parallel fisheries have been maintained to address allocation issues with respect to vessel gear type, operation type, and size. The State opposes the Federal management approach for salmon in the Cook Inlet EEZ Area and has not expressed interest in either a delegation of management authority or taking State action to develop a parallel fishery for salmon. Therefore, NMFS must manage salmon fishing in the Cook Inlet EEZ in the same manner as it manages the vast majority of fish stocks off Alaska—by accounting for projected State water GHL harvest when establishing harvest limits for the EEZ, and debiting catch that occurs in the parallel fisheries against the Federal TAC during the fishing season. In regards to the crab fisheries in the GOA, there are no federally managed crab fisheries in the GOA, and there is no GOA crab FMP. The king crab closure around Kodiak is a State management measure. Comment 6: The proposed FMP violates both the letter and the spirit of the District Court's ruling in 2022, the Ninth Circuit's order in 2016, and the Magnuson-Stevens Act. NMFS's repeated failure to provide the relief requested has caused severe economic harm to the drift gillnet fleet. Amendment 16 violates nearly all of the National Standards and imposes a harvest plan that is both burdensome and inefficient. Do not approve this action. Response: NMFS disagrees. NMFS developed amendment 16 to comply with the decisions of the Ninth Circuit and the District Court, the Magnuson-Stevens Act, and other applicable Federal law. NMFS considered all Magnuson-Stevens Act requirements for FMPs and balanced the competing demands of the National Standards when developing amendment 16. NMFS finds this final rule to be consistent with all 10 National Standards, as detailed in section 5.1 of the Analysis and further addressed in responses to comments under the National Standard headings below. Economic impacts are further addressed in responses to comments below. Because the State refused to accept delegated management authority, amendment 16 must necessarily establish an entirely separate management jurisdiction and, therefore, results in decreased management efficiency relative to the status quo (management of all salmon fishing in Upper Cook Inlet by the State). Separate Federal management infrastructure and regulations must be established while all existing State management measures remain in place. In order to manage the fishery in the Cook Inlet EEZ Area, NMFS must begin collecting the data essential to manage the fishery and required by the Magnuson-Stevens Act. In particular, NMFS must know who is participating in the fishery, how many vessels are active, and where catch is occurring, and must be able to debit catch against established limits during the season to prevent overfishing, even though collecting this information will involve new recordkeeping, reporting, and monitoring requirements for participants that are separate from those required in State waters. Comment 7: NMFS is effectively deferring to State management by managing conservatively, claiming that it is unprepared and procedurally limited in its ability to manage the fishery. Response: NMFS disagrees that it is implicitly deferring to State management by managing conservatively. This will be the first year since Alaska Statehood that there will be a federally-managed salmon fishery in the Cook Inlet EEZ, and currently all data collection and management infrastructure are run by the State. In light of these realities, “managing conservatively” is a responsible approach to fishery management, ensuring that NMFS does not harm salmon stocks as it builds infrastructure and expertise, and begins collecting the data needed to manage a new Federal fishery. It is unreasonable and imprudent to expect that NMFS could greatly increase total harvests from the status quo in the first year of a new fishery, with less management flexibility, less information, and less management experience in Cook Inlet. The best available science suggests status quo harvest levels in the EEZ could not be significantly increased without reducing or eliminating the harvestable surplus for other users and further increasing the risk that stocks of lower abundance will not achieve spawning escapement goals (which have not always been achieved in all years even under status quo EEZ harvests). While NMFS's approach is necessarily precautionary, the proposed 2024 Cook Inlet EEZ Area harvest specifications (89 FR 25857, April 12, 2024) would establish TACs for all species except coho salmon (due to elevated conservation risks and high uncertainty) that are higher than the recent 10-year average estimated Cook Inlet EEZ Area harvest. As described in the preamble to the proposed rule, this action contains all of the management measures required for NMFS to administer and manage all salmon fishing in the Cook Inlet EEZ Area consistent with the Magnuson-Stevens Act. No management decisions are deferred to the State and NMFS will not rely on the State—implicitly or otherwise—to achieve OY or prevent overfishing (one of the flaws the District Court identified with amendment 14). Using the best scientific information available, each year NMFS will prepare a SAFE report and develop harvest specifications based on the recommendations from the Council's SSC. As described in the response to Comment 5, although NMFS must necessarily account for projected removals from State-managed fisheries in setting the harvest levels for the Cook Inlet EEZ Area, and other Federal fisheries off Alaska, that is part of making decisions based on best scientific information available and consistent with National Standard 2. Accounting for State action is not the same as deferring to State action. The processes by which Federal reference points are independently developed and annually reviewed is described in the preamble to the proposed rule and amendment 16. Although NMFS has not historically managed salmon fishing in the Cook Inlet EEZ, it has the ability to do so successfully. Acknowledging that the State has decades of institutional expertise and management tools that make it currently more capable of efficient administration (as described in the Analysis) is not an indictment of NMFS's management. Further, while Federal notice requirements limited the suite of management alternatives and options when developing amendment 16 and preclude rapid fishery openings and closings as occurs under State management, no procedural limitations will prevent NMFS from implementing amendment 16, which has been designed to comply with all Magnuson-Stevens Act requirements. NMFS is confident it can effectively manage this fishery. Comment 8: Regulations for Cook Inlet should allow fishing 110 miles (177.03 km) out from the mouth of the fish spawning grounds. For sport fishing, regulations should allow snagging one mile (1.61 km) from the mouth of any rivers in the inlet. Response: This final rule would allow recreational salmon fishing in all waters of the Cook Inlet EEZ Area. EEZ waters of the West Area (3-200 nmi (5.56-370.4 km) off Alaska) outside of the Cook Inlet EEZ Area remain closed to commercial salmon fishing, as under the status quo, but recreational salmon fishing is authorized. Waters within 3 nmi (5.56 km) of shore are State waters and not subject to this action. Comment 9: Several commenters suggested it would be best if all salmon fishing in Cook Inlet was managed by ADF&G. Some commenters expressed skepticism about the track record of Federal fisheries management ( e.g., halibut fishery declines and salmon bycatch concerns) and other Federal resource management in Alaska. Other commenters noted that the State has more expertise and better flexibility to manage salmon, which is desirable given the complexity and challenge of salmon management in Cook Inlet. One commenter noted that Federal management may prioritize non-Alaskan constituencies. Response: NMFS acknowledges the complexity and challenges of salmon management in Cook Inlet. The challenges associated with Federal management are identified sections 2.4 and 2.5 of the Analysis. NMFS developed amendment 16 to address these challenges to the extent practicable. NMFS is required to implement Federal management of salmon fishing in the Cook Inlet EEZ. The Ninth Circuit held that section 302(h)(1) of the Magnuson-Stevens Act requires a Council to prepare and submit FMPs for each fishery under its authority that requires conservation and management. United Cook Inlet Drift Ass'n v. NMFS, 837 F.3d 1055, 1065 (9th Cir. 2016). Because NMFS determined that the Cook Inlet EEZ salmon fishery requires conservation and management, the Ninth Circuit ruled that it must be included in the Salmon FMP. Because of this litigation and the State's subsequent decision not accept a delegation of management authority for the Cook Inlet EEZ, management of all salmon fishing in Cook Inlet by the State is not possible at this time. Additional discussion of Federal jurisdiction is provided in the response to Comment 3. Further, this rule will not prioritize any constituency. Consistent with National Standard 4, amendment 16 does not discriminate between residents of different states in allocating fishery resources and is fair and equitable to all fishermen. Consistency with National Standard 4 is discussed further below. National Standard 1 Comment 10: The Magnuson-Stevens Act requires that NMFS set MSY and OY for fishing that occurs in both Federal and state waters. Only by doing so can NMFS ensure that the State's action in the State waters fishery does not interfere with NMFS's obligation to follow the Magnuson-Stevens Act in the Federal-waters fishery and achieve OY. NMFS should define OY for both State and Federal waters so as to prevent the overescapement caused by State management decisions. Response: NMFS disagrees that it must set MSY and OY for fishing that occurs in both State and Federal waters. As discussed in the preamble to the proposed rule, MSY is a reference point, informed by the best available scientific information. The Magnuson-Stevens Act and National Standard 1 guidelines require that every FMP include an estimate of MSY for the stocks and stock complexes that require conservation and management (§ 600.310(e)(1)). MSY is defined as the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics ( e.g., gear selectivity), and the distribution of catch among fleets (§ 600.310(e)(1)). Thus, under National Standard 1, NMFS acknowledges that MSY should be defined for a stock or stock complex, regardless of where fishing occurs, and thus it is not set for State waters or Federal waters. Because MSY is not a management target, it does not depend on any management actions. Rather, it describes the capacity of a stock to be harvested sustainably, regardless of who manages fishing or how harvest is authorized. Only by accounting for catch wherever it occurs can NMFS understand the largest long-term average catch or yield that can be taken from the entire stock or stock-complex. Amendment 16 provides that, for salmon stocks harvested in the Cook Inlet EEZ Area, MSY is defined at the stock or stock complex level (as described below), consistent with National Standard 1 guidelines for establishing MSY. Because MSY must be defined in terms of stocks or stock complexes, this definition of MSY does not subdivide between State and EEZ waters in Cook Inlet. NMFS disagrees that OY should be established for fishing occurring in both State and Federal waters. In contrast to MSY, OY may be established at the stock, stock complex, or fishery level (§ 600.310(e)(3)). With respect to the yield from a fishery, the Magnuson-Stevens Act defines “optimum” as the amount of fish that will provide the greatest overall benefit to the Nation. Under amendment 16, the fishery is properly defined as all harvest of co-occurring salmon stocks in the Cook Inlet EEZ for the reasons stated in Comments 1, 3, 4, and 29. Because there is limited ability to target individual stocks of salmon in the Cook Inlet EEZ Area, stocks of varying abundance are inevitably all harvested in the same fishing trip. The amount of harvest that will provide the greatest overall benefit to the Nation in this highly mixed stock fishery where vessels operating in the EEZ cannot discriminate between stocks of varying abundance is very different from the amount of harvest that may be optimum for stocks or fisheries in State waters where vessels are better able to target individual stocks of fish near their natal streams. Thus, OY is better defined for the Cook Inlet EEZ fishery rather than at the stock or stock complex level, taking into account the interactions among various stocks in the EEZ. Furthermore, by defining OY at the level of the Cook Inlet EEZ fishery under Federal jurisdiction, NMFS ensures that OY is entirely within its purview and control to achieve on a continuing basis. In vacating amendment 14, the U.S. District Court for the District of Alaska found that NMFS had impermissibly deferred too much management authority to the State, stating “hinging federal management targets on the changing landscape of state decisions is an improper delegation of management authority to the State.” United Cook Inlet Drift Ass'n v. Nat'l Marine Fisheries Serv., No. 3:21-cv-00255 at *28 (D. Alaska, June 21, 2022). In developing amendment 16, NMFS took a different approach. For the first time since Alaska Statehood, there will be two salmon fishery management jurisdictions in Cook Inlet. To avoid relying on the State to achieve any Federal management targets under amendment 16, NMFS has established OY for the Cook Inlet EEZ fishery and developed a harvest specifications process that will achieve that OY on a continuing basis while preventing overfishing of any of the salmon stocks of varying abundance that co-occur in the EEZ. Comment 11: Amendment 16 addresses the complexities of a mixed stock fishery, with the added burden of separate adjacent jurisdictional authorities. The proposed rule addresses MSY and OY, the jurisdictional issues, and notes reliance on the State's scientific knowledge and management authority but does not describe what triggers fishing in the Cook Inlet EEZ Area. Because the State did not accept delegated management and because NMFS lacks management expertise, amendment 16 implements Federal management that is not reliant on State input. However, because the State frequently develops the best scientific information available for Cook Inlet salmon stocks, amendment 16 should be modified to provide that NMFS authorize EEZ fishing only after receiving notice from the State that doing so will not negatively impact the State's management goals and strategies. Response: NMFS acknowledges the jurisdictional complexity related to this action, and the State's expertise in salmon management. This action is intended to establish a Federal salmon management framework that is not dependent on the State and has the flexibility to adapt to changing conditions. The annual status determination criteria, harvest specifications, and inseason management will be dependent on the best scientific information available and the circumstances present in each fishing year. NMFS expects that it will develop management expertise and strengthen cooperative relationships with various Agency partners related to management of the Cook Inlet EEZ Area over time. NMFS acknowledges that the mixed stock nature of and status of weaker salmon stocks within the fishery can make it difficult to harvest all of the surplus yield for all component stocks and that the interaction between stocks must also factor into the definition of OY. NMFS disagrees that the FMP should include language requiring approval from the State prior to opening salmon fishing in the Cook Inlet EEZ Area. Consistent with the direction of the District Court, NMFS has implemented management measures including a fishing season, fishing periods, and TACs to ensure that OY can be achieved without relying on the State. Comment 12: Under the State's management and based on the State's preliminary numbers, the overescapement of sockeye in just two rivers in Upper Cook Inlet exceeded the total commercial harvest of sockeye for the entirety of Upper Cook Inlet and likely exceeded the escapement necessary for all other rivers in Cook Inlet. According to NMFS's own scientific information included in its analysis, overescapement is problematic because it results in “foregone yield in the current” year and “may be expected to result in reduction in future recruitment,” ( i.e., reduction in long-term yield). To further put these numbers in perspective, overescapement of sockeye in the Kenai and Kasilof in 2023 was more than NMFS's OY range—approximately 291,631 to 1,551,464—for the entire Cook Inlet EEZ salmon fishery for all species of salmon in Upper Cook Inlet. There is no discussion in proposed amendment 16 of how NMFS's management measures for the Cook Inlet EEZ salmon fishery will address and prevent rampant overescapement by the State and the resulting unutilized waste to ensure compliance with National Standard 1. Amendment 16 focuses only on the concept of avoiding overfishing, without making any meaningful effort to simultaneously prevent drastic underfishing by optimizing yield. Response: NMFS acknowledges that Kenai and Kasilof sockeye salmon stocks have exceeded escapement goals in recent years, resulting in foregone yield. As described in the preamble to the proposed rule, salmon fishing in the Cook Inlet EEZ necessarily targets mixed stocks of salmon. Conservation measures to prevent overfishing on less abundant co-occurring salmon stocks are a primary driver of this foregone yield as they limit a complete harvest of the most abundant sockeye salmon stocks to prevent overfishing on less abundant salmon stocks. As referenced within the 2024 SAFE report, which was reviewed by the SSC, during recent years when Kenai and Kasilof river sockeye salmon escapement goals were exceeded, some sockeye, coho, and Chinook salmon escapement goals in Cook Inlet were not achieved at the status quo level of salmon harvest; thereby highlighting the difficulty of managing mixed stock fisheries to enable the harvest of potential yield while also achieving conservation objectives. Management measures that are required to prevent overfishing on all stocks are consistent with the Magnuson-Stevens Act. As described in the response to Comments 18, 25, and 55, Cook Inlet is a mixed stock fishery within which there are weak stocks ( i.e., stocks of relatively low abundance). This situation requires management decisions that can result in overescapement of abundant stocks, such as Kenai and Kasilof sockeye salmon. Providing for greater harvest of the more abundant stocks in the EEZ would create a significant risk of not meeting escapement goals for less abundant stocks and reducing or eliminating the harvestable surplus of these stocks available to all other salmon users. As noted above, NMFS has evaluated historical EEZ harvest levels and found that harvest in the EEZ could not be increased to fully harvest surplus Kenai and Kasilof salmon without causing serious impacts to other salmon harvesters and major conservation problems for other stocks. Whether management in State waters could be modified to increase harvest of these stocks closer to their natal streams without increasing pressure on the stocks of lower abundance in the EEZ is outside the scope of this action, as NMFS has no jurisdiction over State waters (as described in the response to Comment 10 ). The potential for overescapement to reduce future yields is addressed in the response to Comment 18. The Magnuson-Stevens Act has no prohibition against foregone harvest, and in fact suggests foregone harvest is necessary when additional harvest of an abundant stock would also result in bycatch of species for which there is a conservation concern. In contrast, the Magnuson-Stevens Act explicitly mandates that NMFS prevent overfishing. Therefore, in defining OY for a mixed stock fishery, NMFS cannot look at the strongest stocks in isolation. Here, OY is appropriately limited to EEZ waters and defined so as to identify the amount of cumulative harvest of all co-occurring EEZ stocks that provides the greatest net benefit to the Nation while preventing overfishing. This is consistent with NMFS's approach to salmon management on the West Coast where “weak stock” management is required to avoid exceeding limits for the stocks with the most constraining limits. Each year when setting harvest specifications, NMFS will evaluate the maximum potential harvest available in the Cook Inlet EEZ Area and will work to provide harvest opportunities to the extent possible, subject to the constraints of scientific and management uncertainty. As the information available to NMFS to manage salmon fishing in the Cook Inlet EEZ Area improves through implementation of this new Federal fishery management regime, it is possible that harvest levels could increase. The State's management decisions prior to NMFS implementing amendment 16 regarding allocations among fishery sectors under State jurisdiction are State decisions that are outside the scope of this action. Comment 13: This definition of OY is inconsistent with a 2018 NMFS legal memorandum describing that OY should not be subdivided between State and Federal waters. Response: NMFS disagrees that amendment 16's definition of OY is inconsistent with the 2018 NMFS legal memorandum filed in UCIDA v. NMFS. The relevant portion of the legal memorandum stated, “because the fisheries take place in the EEZ and State waters without formal recognition of the boundary between these two areas, the OY should not and cannot be subdivided into separate parts for the EEZ and State waters.” At that time, management of Cook Inlet had never been divided into separate State and Federal management regimes under the FMP. As such, it was assumed that continued State management over the drift gillnet fishery throughout both Federal and State waters would continue through delegation under Magnuson-Stevens Act section 306(a). Delegation of certain Federal management authorities to the State would have maintained a single fishery that could operate without specific regard for the EEZ boundary, but the State declined delegation. Therefore, under amendment 16, which will create separate Federal and State fisheries, it is appropriate to define OY for the specific fishery under NMFS's jurisdiction—the Cook Inlet EEZ salmon fishery. Comment 14: If NMFS could acknowledge that achieving OY/MSY escapement goals should be the driving factor in developing its FMP, then much of the complication built into amendment 16 would go away. Response: NMFS acknowledges that an FMP must contain conservation and management measures, including ACLs and accountability measures, to achieve OY on a continuing basis and provisions for information collection that are designed to determine the degree to which OY is achieved. As stated above, here OY is defined for the fishery—which currently includes seven stocks or stock complexes of varying abundance—and accounts for the mixed stock nature of the salmon fishery in the EEZ and the needs of multiple user groups in identifying the harvest levels that will produce the greatest net benefit to the Nation across a variety of run sizes. The FMP's management measures are explicitly designed to achieve OY on a continuing basis while preventing overfishing, consistent with National Standard 1. NMFS does not agree that achieving MSY or MSY escapement goals are its mandates. MSY is not a management target, as described above, and MSY identifies the maximum sustainable harvest level an individual stock could theoretically support if it was possible to target that stock in isolation and without uncertainty. OY is prescribed on the basis of MSY, as reduced by any relevant economic, social, or ecological factors. Here, for Tier 1 and 2 salmon stocks, MSY in the Cook Inlet EEZ represents all salmon in excess of the stock's escapement goal in a given year. For Tier 3 stocks, which have no reliable estimates of escapement, maximum catch over a recent range of years that are representative of current biological and environmental conditions is used as a proxy for MSY. But because it is not possible to target individual stocks of salmon in the EEZ, it is not possible to design conservation and management measures intended to fully harvest MSY for each stock, as such harvest levels would result in overfishing of the least abundant stocks. Instead, OY is defined for the fishery on the basis of MSY—in that it aims to achieve as much surplus yield for each stock as possible—but is reduced from MSY to account for interactions between stocks (ecological factors) and identify the harvest levels that will continue to support multiple active fishery sectors without resulting in any one stock routinely missing its escapement goal ( i.e., likely overfishing) or any user group losing access to the resource (economic factors). Fully harvesting MSY for Kenai late run sockeye in the EEZ, for example, could decimate co-occurring populations of salmon bound for Northern Cook Inlet, completely eliminating fishing opportunities for other users. Such an outcome would benefit one user group to the exclusion of all others and thus would not produce the greatest net benefit to the Nation. Here, NMFS has defined OY by carefully considering net benefits, the competing demands of the numerous stakeholders and tribes who rely on Cook Inlet salmon stocks, and the fundamental characteristic of co-occurring, mixed stocks in the Cook Inlet EEZ. NMFS concludes the management measures in this final rule will achieve OY as defined in amendment 16 on a continuing basis. Comment 15: Federal oversight of this fishery is a must to obtain maximum harvest and sustainable yield. Response: The Magnuson-Stevens Act mandates that Federal fishery management measures shall prevent overfishing while achieving OY, which is different from achieving maximum harvest or MSY. To the degree that the commenter is suggesting that Federal management will result in harvests equal to MSY, NMFS disagrees. To the contrary, many stocks of fish in the EEZ are harvested at levels well below their MSY because of the complex interactions between stocks; achieving MSY for certain stocks would result in overfishing of other stocks, which would be inconsistent with the first mandate of National Standard 1. Instead, Federal fishery management measures must achieve OY on a continuing basis. OY is defined as the amount of fish that: (1) Will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems; (2) Is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor; and (3) In the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery (16 U.S.C. 1802(33)). Comment 16: Using historical catch data from 1999-2021 is incorrect as a proxy for MSY and OY. This period begins after the State increased escapement levels, resulting in large overescapements of sockeye in the Kenai and Kasilof Rivers and under-harvest of coho, pink and chum salmon. Because the State has not been managing the fishery on the basis of MSY, this historical catch data has no relationship with MSY. This continues poor State management practices in Federal management. NMFS should include harvest data from the 1980s. Response: NMFS disagrees. To start, historical catch is not used as a basis for establishing MSY in this action for any stocks or stock complexes with escapement goals or estimates of total run size (Tier 1 and Tier 2 stocks). Rather, MSY represents the maximum potential harvest of a run in excess of the spawning escapement goal. The annual SAFE reports will review the best scientific information available regarding escapement goals and estimated run sizes. For Tier 3 stocks with no data on run size or total escapement, maximum catch over a recent range of years that is representative of current conditions is used as a proxy for MSY because it represents the best scientific information available to estimate MSY. In prescribing OY on the basis of MSY, NMFS used the best scientific information available to identify the range of harvest levels in the EEZ that will provide the greatest net benefit to the Nation by ensuring all stocks harvested in the EEZ can meet their escapement goals and the greatest number and diversity of stakeholders and fishery sectors will retain access to the resource. In other words, NMFS defined OY as the harvest levels that are expected to capture as much yield in excess of escapement goals as possible in the EEZ without any individual stock routinely not achieving these escapement goals and risking overfishing, thereby maintaining a harvestable surplus for all other salmon users. The best scientific information available regarding the appropriate harvest levels in this mixed stock fishery are currently estimates of historic catch in years of high and low abundance across stocks from 1999-2021. As explained in the Analysis, the 1999-2021 time period was chosen due to the advent of the current abundance-based approach to management of salmon in Upper Cook Inlet. In addition, this time series represents the recent range of salmon productivity conditions that are representative of reasonably foreseeable future conditions, reflects a range of time when management measures both increased and decreased fishing opportunity in EEZ waters, and captures a range of different social and economic conditions within fishing communities. Furthermore, this period also reflects the time for which high quality and comparable data for nearly all fisheries and fishing communities throughout Cook Inlet are available. The OY range considers but does not include the 1980s because there was a different ecological regime in place in the North Pacific (highly productive for salmon stocks), seafood markets for salmon were significantly different (strong Asian demand and less competition from farmed salmon), and the regional population was significantly smaller. These factors all influence NMFS's consideration of the greatest net benefit to the Nation, including consideration of food production and recreational opportunities and taking into account the protection of marine ecosystems. The harvest levels from 1999-2021 have resulted in numerous viable fisheries while preventing stocks from becoming overfished. While it may be possible to develop better information in the future as NMFS collects more data specific to the EEZ—and section 302(h)(5) of the Magnuson-Steven Act requires the Council to review OY on a continuing basis—at present, historic catch is the best scientific information available. Therefore, ranges of catch in years of high and low salmon abundance is an appropriate method to determine OY. This action establishes a Federal management framework that accommodates varying levels of harvest over time as the information available to inform harvest specifications and both relative and absolute abundances of salmon change each year. NMFS reviewed fishery data dating back to 1966 when developing a definition for OY. Harvests by the drift gillnet fleet, and all other salmon users in Cook Inlet, have fluctuated dramatically over time based on both salmon abundance cycles and management decisions. Ultimately, as explained above, NMFS determined that the best scientific information available for prescribing OY is currently the estimates of historic catch in years of high and low abundance across stocks from 1999-2021. Comment 17: The proposed calculation of MSY, OY, and TAC includes 3 years, 2018, 2020 and 2021, which were declared economic disasters by the Secretary of Commerce. This data should be omitted from all analyses of historic harvest. Response: This action does not use historical catch data to define MSY or to set TACs, as explained above. For the reasons explained in response to Comment 16, the best available science for developing OY includes historic catch data. Of the 2018, 2020, and 2021 fishery disaster determinations referenced by the commenter, only the 2020 disaster determination applied to the drift gillnet fleet. The 2018 and 2021 determinations only applied to the East Side set net fishery sector. The East Side set net fishery does not operate in EEZ waters. Further, NMFS disagrees that disaster and low harvest years should be omitted from consideration in defining OY, as they represent part of the range of conditions experienced in the fishery. In defining the lower bound of OY for the Cook Inlet EEZ Area, the three lowest EEZ harvests are averaged together, and this number identifies what optimum harvest levels might be in years when low stock abundance reduces harvest opportunities. It should be noted that OY is not an annual management target but is a long-term objective. Harvests may fall above or below the OY range in some years. Furthermore, OY may appropriately encompass very low harvests when that is what is required to prevent overfishing on all stocks. For example, in the GOA groundfish FMP, the lower bound of the OY range is defined by the year with the absolute lowest fishery harvest in the time series and in the BSAI King and Tanner Crab FMP, the lower bound of the OY range is zero. Comment 18: Multiple commenters expressed concern about overescapement reducing future yields of Cook Inlet salmon stocks. Commenters stated that underfishing (too little harvest) can jeopardize the capacity of a salmon stock to produce MSY on a continuing basis by allowing too many salmon to enter the stream to spawn and exceeding the carrying capacity of the spawning and rearing habitat, thereby reducing future runs. ADF&G data indicates all the salmon stocks in Cook Inlet are underfished, and with such low exploitation rates, we cannot be overfishing. The commenters stated that most salmon stocks in Cook Inlet are underfished with returns that have exceeded escapement goals. For example, Kenai and Kasilof River sockeye salmon have consistently exceeded escapement goals, sometimes by over a million fish. This action will continue or increase overescapement and result in overcompensation. Management practices that jeopardize the long-term health of the salmon resource reduce opportunities for harvesters and processors and harm the economies of fishing communities. Response: NMFS disagrees that all salmon stocks in Cook Inlet are underfished, that overfishing cannot occur in Cook Inlet, and that amendment 16 will jeopardize the long-term health of the salmon resource if the stocks of highest abundance exceed their escapement goals when harvest restrictions are required to protect stocks of lower abundance. As discussed in the 2024 SAFE report, escapements for some stocks of sockeye, coho, and Chinook salmon have been below spawning escapement goals during recent years when Kenai and Kasilof sockeye salmon have exceeded the upper bound of their escapement goals. As discussed in section 3.1 of the Analysis, the need to conserve weaker stocks by reducing fishing effort sometimes results in foregone yield from more productive stocks. For salmon, this can result in escapement goals being exceeded, which is sometimes referred to as overescapement. NMFS has evaluated the best available science on overescapement. Appendix 14 of the Analysis is an independent analysis of the potential for overcompensation (reduced yield as a result of overescapement) in Kenai and Kasilof river sockeye salmon stocks. The SSC reviewed this analysis, which found that ADF&G's escapement goals were established within the range expected to produce MSY for those stocks, that ADF&G's point estimates of MSY were accurate, and that there is limited evidence for overcompensation across the observed range of escapements for Kenai and Kasilof sockeye salmon. Thus, while instances of overescapement will result in foregone yield in the current year, existing spawner-recruitment information does not indicate that overescapement has resulted in substantial reductions in recruitment and yield for the primary stocks harvested by the drift gillnet fleet in Cook Inlet. In other words, though the Kenai and Kasilof sockeye salmon stocks have recently exceeded their escapement goals, this has not resulted in a conservation problem for those stocks and available data does not indicate that overescapement has resulted in a reduction in future yields. NMFS concludes that increased fishing effort in the EEZ to fully harvest the available yield for Kenai and Kasilof sockeye salmon would result in serious conservation concerns for stocks of lower abundance, which would fail to achieve their escapement goals. For Cook Inlet salmon stocks without escapement goals, information is not available to analyze overescapement or its potential impacts on future yields. In the absence of specific stock information, conservative management using suitable proxies while following the precautionary principle is consistent with the National Standard 1 guidelines for dealing with data-poor stocks (§ 600.310(e)(1)(v)(B) and (h)(2)). The guidelines provide flexibility in setting MSY and other reference points based on insufficient data and in consideration of stocks with unusual life history characteristics, including salmon. The risk of overfishing as a result of harvest rates that are too high is much greater than the uncertain and speculative risk of underharvest or overescapement. Therefore, precautionary management is appropriate for data-poor fish stocks. From a practical perspective, it is not possible to manage the mixed stock salmon fishery in the Cook Inlet EEZ Area by harvesting surplus yield on all stocks because the composition, abundance, and productivity of stocks and species in the fishery vary substantially. Overescapement occurs in Cook Inlet, as noted in section 3.1 of the Analysis. Overescapement usually results from (1) a lack of fishing effort, (2) unexpectedly large salmon runs, or (3) management or economic constraints on the fishery. In this instance, management must constrain harvest of the largest, most productive salmon stocks to protect less abundant salmon stocks and species. Comment 19: The Exxon Valdez litigation had documented damage to the Kenai River due to overescapement and the Exxon Valdez Oil Spill Trustees Council funded ADF&G research on damage from Kenai Sockeye overescapement and plaintiffs' compensation in part was for damage to future runs caused by overescapement. Now the State is managing the sockeye fishery in a manner that results in substantial overescapement, similar to what occurred after the oil spill. Response: The response to Comment 18 explains that the best scientific information available indicates that large escapements of sockeye salmon to the Kenai River have not resulted in reduced future yields and are not a conservation concern compared to the clear risks of overfishing and/or stocks failing to meet the lower bound of escapement goals. The claims and damages paid to plaintiffs in the decades of litigation arising from the Exxon Valdez oil spill are beyond the scope of this action. Comment 20: The result of the overescapement on the Kenai and Kasilof rivers caused by commercial fishery restrictions wastes a food resource that belongs to the whole nation (see the Supreme Court's case of Hughes v. Oklahoma which reversed Greer v. Connecticut ). It is in the whole Nation's interest as to what happens to salmon in Alaska. When Alaska became a state, the State compact with Congress was for the State to manage its fish and wildlife in the national interest. The State created ADF&G to manage fish and game in the national interest. It is no longer doing that. This is the reason for the involvement of NMFS and the Department of Commerce. Response: The U.S. Supreme Court in Hughes v. Oklahoma, 441 U.S. 322, 338 (1979), held that a State could not prohibit transporting fish out of state for sale once caught. Hughes v. Oklahoma is not relevant to this action. NMFS has determined that this action would achieve OY for the Cook Inlet EEZ Area and, in doing so, will result in the greatest overall net benefit to the Nation. The National Standard 1 guidelines provide that OY means the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems. This means NMFS must look at the impacts of its harvest management on all salmon stocks and stakeholders and cannot look at the interests of the drift gillnet fleet alone. As noted in the preamble to the proposed rule, amendment 16 defines OY as the average range of target EEZ harvest across all species that maximizes fishing opportunities while preventing overfishing on any one stock. This OY range provides the greatest overall net benefits to the Nation because it ensures sustainable stock levels throughout the ecosystem, preserves multiple viable commercial fishery sectors for continued food production, and maintains a viable recreational fishing sector that attracts participants from throughout the Nation. This OY range is expected to result in drift gillnet harvests near historic levels, protect less abundant salmon stocks transiting to Northern Cook Inlet, and ensure other commercial and non-commercial stakeholders in Cook Inlet continue to have access to salmon resources. Any management plan designed only to prevent overescapement in the Kenai and Kasilof rivers by increasing EEZ harvest would upset this balance, preempting other users, and likely causing stocks of lower abundance—particularly in Northern Cook Inlet—to more regularly miss their escapement goals, ultimately resulting in overfishing. Comment 21: Use the flexibility within the National Standard 1 guidelines (§ 600.310(h)(2)) to adopt an escapement-based inseason management methodology similar to the State. If the State is allowing too much harvest in its jurisdiction, it will be reflected in too low escapement numbers, and Federal managers will know to restrict fishing. Likewise, if the State is not providing for enough harvest, daily escapement numbers will indicate a higher than acceptable final escapement, and Federal managers will know to allow more fishing time. One commenter noted that an alternative approach is needed for salmon because of the following: (1) unlike groundfish stocks, salmon reproduce only once; (2) the harvestable surplus is entirely new recruits and the catch comprises almost exclusively mature salmon; (3) productivity of a specific year class cannot be improved by limiting harvest in subsequent years; (4) foregone harvest cannot be recaptured in future years; and (5) abundance cannot be estimated effectively in advance. Therefore, inseason estimates of abundance using contemporaneous data, with appropriate management actions taken to assure escapement and optimum production in future years, is the most effective way to avoid the risk of overfishing. Response: As set forth under section 301 of the Magnuson Stevens Act, National Standard 1 provides that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. Section 303(a)(15) of the Magnuson Stevens Act requires that each FMP establish mechanisms for specifying ACLs to prevent overfishing and include accountability measures to prevent ACLs from being exceeded and to correct overages of the ACL if they do occur. The National Standard 1 guidelines at § 600.310(h)(2) contemplate limited circumstances in which alternative approaches to establishing ACLs may be appropriate, and specifically cite Pacific salmon as an example of stocks that may require an alternative approach to ACLs. However, while § 600.310(h)(2) provides NMFS some flexibility to consider alternative means of establishing ACL mechanisms and accountability measures in FMPs, the National Standard 1 guidelines do not provide discretion to consider alternative means of establishing other reference points, like OFL or ABC. And any alternative approach to establishing ACLs must be consistent with the Magnuson-Stevens Act. The primary function of status determination criteria, ACLs, and related requirements is to ensure that a scientifically-based approach is used for controlling catch to maintain stock abundance at the level necessary to prevent overfishing, ensure no stocks become overfished, and achieve OY in the fishery. Therefore, an alternative approach that is consistent with the Magnuson-Stevens Act must document how the alternative management measures would limit catch and explain how such measures would rely on the best scientific information available. When the Council was developing the alternatives for analysis, the Council and NMFS considered using the State's salmon escapement goal management as an alternative approach for satisfying the ACL requirements of the Magnuson-Stevens Act under delegated management to the State (Alternative 2). Under amendment 12, the Council recommended this alternative approach for ACLs in the East Area. Escapement goals are specified annually, in terms of numbers of fish. The biology of salmon is such that escapement is the point in the species life history best suited for routine assessment and long-term monitoring. Using spawning escapement goals is consistent with the long-standing practice of using spawning escapement to assess the status of salmon stocks. Under this alternative approach (not adopted in amendment 16), the mechanisms for specifying ACLs salmon stocks would be the State's scientifically-based management measures used to determine stock status and control catch to achieve the number of spawners necessary to produce MSY. The State's salmon management program is based on scientifically defensible escapement goals and inseason management measures to prevent overfishing. Accountability measures would include the State's inseason management measures and the escapement goal setting process that incorporates the best scientific information available on stock abundance. Using the State's inseason management approach as an alternative approach to establishing ACLs is not possible under Federal management of a new fishery in the EEZ that will be managed separately from fishing in State waters. NMFS currently has no infrastructure for collecting escapement information in Cook Inlet and there is no guarantee NMFS managers would have access to information collected by the State quickly enough to make real time management decisions. Additionally, escapement information is not available from any source for many salmon stocks in Cook Inlet. The responses to Comments 23 and 28 provide additional discussion of the procedural challenges of implementing escapement-based inseason management in this situation. For management of the Cook Inlet EEZ Area as an entirely separate jurisdiction, using escapement-based inseason management as an alternative approach for ACLs may have additional limitations. Because there is a lag of multiple days (or longer for the Northern District salmon stocks currently with the greatest conservation risks) between encountering EEZ fisheries and being counted at escapement monitoring stations, that data may not be timely for the current management situation. This lag between receipt of data and action can have huge consequences in a fishery where a single opening can harvest well over 300,000 salmon per day. Further, just because one stock has reached an escapement goal and can sustain additional harvest that does not mean that all of the other stocks, which are highly mixed in EEZ waters, can support additional harvest. This issue is compounded by fishing in EEZ waters occurring before all other users. Basing management solely on escapement would make it more difficult to ensure there was at least some harvestable surplus available to all salmon users in Cook Inlet across all jurisdictions when cooperation is not guaranteed through established agreements. During the development of this action—first at the Council, then as a Secretarial FMP amendment after the Council failed to recommend any management measures—no one identified any alternative means of specifying ACLs for the Cook Inlet EEZ Area that would be consistent with the Magnuson-Stevens Act, rely on the best scientific information available, and limit catch to ensure no overfishing occurred. Therefore, amendment 16 uses the default ACL approach described in the National Standard 1 guidelines—establishing preseason harvest limits based on the best scientific information available at the time stock assessments are drafted and harvest specifications are recommended. This is similar to how ACLs are set for salmon along the US West Coast and how the 2019 Pacific Salmon Treaty Agreement establishes pre-season limits on Chinook harvest under the Treaty. Comment 22: The State, several regional sportfishing organizations, and stakeholders in the Northern District believe amendment 16 will disrupt conservation and management benefits realized by the State's management plans, which these commenters have found to successfully balance the complexity and challenges of managing multiple user groups in a highly populated area. They emphasize that the State's management plans were developed by the BOF to ensure long-term sustainability of both strong and weak salmon stocks, optimize yields and opportunities of the diverse fisheries, and allocate benefits among user groups. They feel this action will result in overfishing of weak salmon stocks, produce suboptimum yields, and confound the State's effective in-season management. This is not consistent with the Magnuson-Stevens Act or National Standard 1. Response: NMFS recognizes the complex and challenging nature of Cook Inlet salmon fisheries. NMFS disagrees that amendment 16 will undermine the State's Central District Drift Gillnet Fishery Management Plan, result in overfishing, or produce suboptimal yields. As described in the preamble to the proposed rule, NMFS recognizes that salmon harvest in the Cook Inlet EEZ occurs first and can impact the amount of salmon available to upstream users and to meet spawning escapement goals. In developing this final rule, NMFS considered the management measures implemented by the BOF and worked to balance competing interests and provide opportunity for all users of salmon throughout Cook Inlet. NMFS acknowledges that, in some years, this action may allow for more days of drift gillnet fishing in the Cook Inlet EEZ Area relative to previous State management plans. NMFS will use TACs that account for uncertainty and harvest in other fisheries in order to prevent overfishing on any less abundant salmon stocks transiting through the Cook Inlet EEZ Area. As described in section 2.5.2.1 of the Analysis and the response to Comment 25, TACs will account for stocks of lower abundance and prevent overfishing on weak stocks. The TACs are expected to result in total harvests fairly consistent with the status quo. NMFS will have inseason management authority to adjust TACs and close or reopen the fishery as needed to account for inseason conditions. NMFS and the Council will use the best scientific information available and work to improve salmon monitoring and assessment where possible/practicable, and will coordinate with the State to the extent possible. Further, as discussed in the section on changes from the proposed to final rule, NMFS is reducing the number of open fishing periods from two to one from July 16 to July 31 to directly respond to the comments from users in Northern Cook Inlet who said they depend on the conservation corridor established under State management. NMFS expects that this final rule will continue to provide for a harvestable surplus for all Upper Cook Inlet salmon fishery sectors in both State and Federal waters. NMFS anticipates that under this final rule all Cook Inlet salmon fis [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-08664. Public record. Not legal advice.