Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Salmon, 75570-75588 [2012-30839]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 246 (Friday, December 21, 2012)]
[Rules and Regulations]
[Pages 75570-75588]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30839]



[[Page 75570]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 120330244-2673-02]
RIN 0648-BB77


Fisheries of the Exclusive Economic Zone Off Alaska; Pacific 
Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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

DATES: Effective January 22, 2013.

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

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

SUPPLEMENTARY INFORMATION: This final rule implements Amendment 12 to 
the FMP. NMFS published a Notice of Availability for Amendments 10, 11, 
and 12 in the Federal Register on April 2, 2012 (77 FR 19605) with 
comments invited through June 1, 2012. NMFS published a proposed rule 
to implement Amendment 12 on April 11, 2012 (77 FR 21716) with comments 
invited through May 29, 2012. No implementing regulations are necessary 
to implement Amendments 10 and 11. NMFS approved Amendments 10, 11, and 
12 on June 29, 2012.
    The Council prepared the FMP under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and 
implementing the FMP appear at 50 CFR part 679. NMFS approved the 
original FMP in 1979. Since then, the FMP was comprehensively revised 
by Amendment 3 in 1990, and again by Amendment 12 in 2012. The FMP 
conserves and manages the Pacific salmon that occur in the vast 
majority of the exclusive economic zone (EEZ) off Alaska. The FMP 
establishes the Salmon Management Area, which is divided into two 
management areas: the East Area is the EEZ in the Gulf of Alaska east 
of Cape Suckling (143[ordm] 53.6' West Longitude), and the West Area is 
most of the EEZ off Alaska west of Cape Suckling. The FMP manages 
commercial fishing for salmon in the West Area and delegates to the 
State of Alaska (Alaska) management of commercial and sport fishing for 
salmon in the East Area. The following paragraphs provide a summary 
description of the changes made to the FMP by Amendment 12 and the 
regulatory changes made by this final rule.

Amendment 12

    In December 2011, the Council voted unanimously to recommend 
Amendment 12 to the FMP. Amendment 12 comprehensively revises the FMP 
to reflect the Council's salmon management policy, which is to 
facilitate State of Alaska (State) salmon management in accordance with 
the Magnuson-Stevens Act, Pacific Salmon Treaty, and applicable Federal 
law. Under this policy, the Council identified six management 
objectives to guide salmon management under the FMP and achieve the 
management policy: (1) Prevent overfishing and achieve optimum yield; 
(2) manage salmon as a unit throughout their range; (3) minimize 
bycatch and bycatch mortality; (4) maximize economic and social 
benefits to the Nation over time; (5) protect wild stocks and fully 
utilize hatchery production; and (6) promote safety. The Council, NMFS, 
and the State of Alaska will consider these management objectives in 
developing future FMP amendments and associated fishery management 
measures.
    To reflect the Council's policy and objectives, Amendment 12 
redefines the FMP's management area to remove three small pockets of 
Federal waters adjacent to Cook Inlet, Prince William Sound, and the 
Alaska Peninsula from the West Area. Figure 23 to part 679 provided in 
this final rule defines the specific net fishing areas excluded from 
the West Area. (For the remainder of the preamble, these areas are 
referred to collectively as the net fishing areas and individually as 
the Cook Inlet Area, the Prince William Sound Area, or the Alaska 
Peninsula Area.) The salmon fisheries in these areas are managed by the 
State. Amendment 12 also removes the sport fishery in the West Area 
from the FMP. The Council determined and NMFS agreed that State 
management of the stocks and fisheries occurring in the net fishing 
areas and the sport fishery in the West Area is consistent with the 
policies and standards of the Magnuson-Stevens Act, and that Federal 
management of the net fishing areas and the sport fishery in the West 
Area would serve no useful purpose or provide present or future 
benefits that justified the costs of Federal management. The Council 
and NMFS determined that removing the net fishing areas and the sport 
fishery from the West Area allows the State to manage Alaska salmon 
stocks and directed fishing for those stocks as seamlessly as 
practicable throughout their range. Additional information on the 
Council's and NMFS' rationale for removing the net fishing areas and 
the sport fishery is provided in the Responses to Comments below. The 
FMP continues to apply to the vast majority of the EEZ west of Cape 
Suckling and maintains the prohibition on commercial salmon fishing in 
the redefined West Area.
    In the East Area, Amendment 12 maintains the current scope of the 
FMP and reaffirms that management of the commercial and sport salmon 
fisheries in the East Area is delegated to the State. The FMP relies on 
a combination of State management and management under the Pacific 
Salmon Treaty to ensure that salmon stocks, including trans-boundary 
stocks, are managed as a unit throughout their ranges and that 
interrelated stocks are managed in close coordination. Maintaining the 
FMP in the East Area leaves existing management structures in place, 
recognizing that the FMP is the nexus for the application of the 
Pacific Salmon Treaty and other applicable Federal law.
    Amendment 12 contains a number of provisions to update the FMP and 
bring it into compliance with the Magnuson-Stevens Act and other 
applicable Federal law. Amendment 12 includes these changes in a 
reorganized FMP with a more concise title, ``Fishery Management Plan 
for the Salmon Fisheries in the EEZ off Alaska.'' The Notice of 
Availability prepared for Amendment 12 (77 FR 19605, April 2, 2012) 
provides detailed information on the provisions of Amendment 12, as

[[Page 75571]]

well as additional explanation of the Council's rationale for Amendment 
12.
    The primary new FMP provision is a mechanism to establish annual 
catch limits (ACLs) and accountability measures (AMs) for the salmon 
stocks caught in the East Area commercial troll fishery, the only 
commercial fishery authorized under the FMP. Amendment 12 does not 
establish ACLs or AMs in the West Area, because no commercial salmon 
fisheries are authorized in the West Area.
    The mechanism to establish ACLs and AMs for the East Area 
commercial troll fishery builds on the FMP's existing framework for 
establishing status determination criteria. Amendment 12 does not 
establish a mechanism for specifying ACLs and AMs for Chinook salmon 
because the Magnuson-Stevens Act exempts stocks managed under an 
international fisheries agreement in which the United States 
participates from the ACL requirement (16 U.S.C. 1853). Under Amendment 
12, the mechanisms for specifying ACLs for Tier 2 (coho salmon) and 
Tier 3 (coho, pink, chum, and sockeye salmon stocks managed as mixed-
species complexes) salmon stocks are established using the State's 
scientifically-based management measures to control catch and prevent 
overfishing. This approach represents an alternative approach to the 
methods prescribed in NMFS' National Standard 1 Guidelines (50 CFR 
600.310) for specifying ACLs. The Council recommended and NMFS approved 
an alternative approach because the State's escapement-based management 
system is a more effective management system for preventing overfishing 
of Alaska salmon than a system that places rigid numeric limits on the 
number of fish that may be caught. Escapement is defined as the annual 
estimated size of the spawning salmon stock in a given river, stream, 
or watershed.
    Amendment 12 also revises the definition of optimum yield (OY). For 
Chinook salmon stocks in Tier 1, an all-gear maximum sustainable yield 
(MSY) is prescribed in terms of catch by the Pacific Salmon Treaty and 
takes into account the biological productivity of Chinook salmon and 
ecological factors in setting this limit. Under Amendment 12, the 
portion of the all-gear catch limit allocated to troll gear represents 
the OY for that fishery and takes into account the economic and social 
factors considered by the State in making allocation decisions. For 
stocks in Tiers 2 and 3, MSY currently is defined in terms of 
escapement. MSY escapement goals account for biological productivity 
and ecological factors, including the consumption of salmon by a 
variety of marine predators. Under Amendment 12, the OY for the troll 
fishery is that fishery's annual catch, which, when combined with the 
catch from all other salmon fisheries, results in a post-harvest run 
size equal to the MSY escapement goal for each indicator stock. The 
portion of the annual catch harvested by the troll fishery reflects the 
biological, economic, and social factors considered by the State in 
determining when to open and close the coho salmon harvest by the troll 
fishery. For the redefined West Area under Amendment 12, commercial 
fishing is prohibited; therefore the directed harvest OY is zero. The 
redefined West Area has been closed to commercial net fishing since 
1952 and commercial troll fishing since 1973, and there has not been 
any commercial yield from this area. This OY recognizes that salmon are 
fully utilized by state-managed fisheries, and that the State manages 
fisheries based on the best available information using the State's 
escapement goal management system. This OY also recognizes that non-
Alaska salmon are fully utilized and managed by their respective 
management authorities when they return to their natal regions.
    Finally, Amendment 12 adds a fishery impact statement to the FMP, 
revises the current FMP process for Federal review of State management 
measures to more fully describe the process and bring it into 
compliance with Magnuson-Stevens Act requirements (16 U.S.C. 
1856(a)(3)(B)), and removes existing FMP language governing the 
issuance of Federal salmon permits. The Council recommended removing 
FMP language related to Federal salmon permits because all current 
participants have State of Alaska limited entry permits and Federal 
permits are no longer necessary. According to language included in the 
original 1979 FMP, provisions for Federal salmon permits were 
established to complement the State limited entry permit, in order to 
limit capacity in the EEZ so that persons who did not receive a State 
limited entry permit would not simply shift their fishing efforts into 
Federal waters.

Final Rule

    While many of the provisions of Amendment 12 do not require 
implementing regulations, several provisions require modifications to 
the regulations implementing the FMP. To implement Amendment 12, this 
final rule:
     Revises Sec.  679.1(i) to reflect the new FMP title and 
clarify that the FMP governs commercial salmon fishing in the West Area 
and commercial and sport salmon fishing in the East Area.
     Revises the definition of Salmon Management Area, at Sec.  
679.2, to explicitly exclude the Cook Inlet Area, the Prince William 
Sound Area, and the Alaska Peninsula Area from the West Area.
     Revises Sec.  679.3(f) to remove references to laws that 
are no longer applicable or current, such as references to the North 
Pacific Fisheries Act of 1954.
     Removes and reserves Sec.  679.4(a)(1)(v) and (h), which 
required Federal salmon permits.
     Revises Sec.  679.7(h) to explicitly prohibit commercial 
fishing for salmon using any gear except troll gear in the East Area, 
and to explicitly prohibit commercial fishing for salmon in the West 
Area.
     Replaces Figure 23 with a new map to show the newly 
defined Salmon Management Area and the three net fishing areas excluded 
from the West Area.
    Additional information is provided in the proposed rule for 
Amendment 12 (77 FR 21716, April 11, 2012).

Response to Comments

    NMFS received 12 letters of public comment during the public 
comment periods for Amendments 10, 11, and 12 and the proposed rule to 
implement Amendment 12. NMFS summarized these letters into 47 separate 
comments, and responds to them below. All of the comments received 
addressed various provisions of Amendment 12; NMFS received no comments 
on Amendments 10 or 11, or on the specific wording of the regulatory 
text contained in the proposed rule.
    Comment 1: The redefined scope of the FMP serves to facilitate 
State management of salmon fisheries by avoiding the creation of 
duplicative Federal and State management structure in the West Area and 
reaffims that management of the commercial and sport salmon fisheries 
in the East Area is delegated to the State, in accordance with the 
Pacific Salmon Treaty and other Federal law.
    Response: NMFS acknowledges the comment.
    Comment 2: Excluding the sport fishery and three traditional 
commercial net fishing areas from the West Area and prohibiting 
commercial salmon fishing in the West Area more clearly reflects the 
Council's policy regarding State management authority over these 
fisheries and acknowledges that salmon warrant an alternative approach, 
per the National Standard 1 Guidelines, to control catch and prevent 
overfishing.

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    Response: NMFS acknowledges the comment.
    Comment 3: The FMP revisions maintain the current management 
structure, whereby salmon fisheries are managed as a unit throughout 
their range in both the East and West Areas through the State's 
escapement-based system. Real-time monitoring and inseason management 
actions by the State help ensure that escapement goals are met and 
optimum production is achieved. The FMP revisions recognize the 
necessity of maintaining this effective and flexible management system 
for salmon.
    Response: NMFS acknowledges the comment.
    Comment 4: Reject Amendment 12 and the proposed rule because 
removing the EEZ waters of Cook Inlet from the FMP is arbitrary, 
capricious, and contrary to the Magnuson-Steven Act. This rule should 
be rejected because (1) The Magnuson-Steven Act, at 16 U.S.C. 
1801(b)(1), specifically states that anadromous species need immediate 
protection; (2) the Cook Inlet salmon fishery is currently facing 
significant management concerns; and (3) the regulated community in 
Cook Inlet has unanimously asked the Council to take action to address 
these concerns.
    Response: Amendment 12 and this final rule are consistent with the 
Magnuson-Stevens Act and are not arbitrary or capricious. NMFS does not 
agree with the comment's interpretation of this statutory provision as 
requiring immediate protection for salmon or any other fishery 
resources. The Salmon FMP is consistent with the purpose of the 
Congress in the Magnuson-Stevens Act, at 16 U.S.C. 1801(b)(1), in that 
it exercises sovereign rights for the purposes of conserving and 
managing salmon, among other fisheries, within the EEZ. The Salmon FMP 
exercises sovereign rights in managing salmon within the EEZ by closing 
the majority of the EEZ to commercial salmon fishing. In addition, 
removing the EEZ waters adjacent to Cook Inlet from the FMP to 
facilitate State management of the salmon fisheries does not interfere 
with these sovereign rights.
    Management concerns in Cook Inlet were one of the primary issues 
discussed by the Council during the development of Amendment 12 and 
analyzed in the EA prepared for this action (see ADDRESSES). The 
Council took action with full consideration of the situation in Cook 
Inlet and decided that Federal conservation and management are not 
required for the commercial salmon fishery in the Cook Inlet Area.
    NMFS and the Council received extensive public testimony during the 
development of Amendment 12 concerning dissatisfaction with State 
salmon management in Cook Inlet and the desire for a specific type of 
Federal involvement. The Council, in their deliberations on this issue, 
explained in detail why the Council determined that Federal 
conservation and management are not necessary for the commercial salmon 
fisheries that occur in the Cook Inlet Area. Further, the Council 
explained why the type of Federal involvement envisioned by some 
members of the public was not realistic or consistent with the 
Magnuson-Steven Act.
    The Council determined that (1) The State is the governmental 
entity best suited to manage salmon fisheries; (2) the salmon fisheries 
are adequately managed by the State consistent with the policies and 
standards of the Magnuson-Steven Act; and (3) Federal management of 
salmon fisheries should only occur in those areas and for those 
fisheries where Federal management serves a useful purpose. The State 
has managed the salmon fisheries since statehood in 1959, and the 
Council has relied on State management of the salmon fisheries in the 
EEZ since 1979. State salmon management is consistent with the policies 
and standards of the Magnuson-Stevens Act, as explained in EA Chapter 2 
and throughout the EA (see ADDRESSES). The State actively manages 
Alaska salmon stocks in every region of the State through its use of 
escapement-based management. Escapement-based management takes into 
consideration the unique life history of Pacific salmon and escapement 
goals maintain spawning levels that provide for maximum surplus 
production. The State has the expertise and infrastructure to manage 
Alaska salmon as a unit in consideration of all fishery removals and to 
meet escapement goals.
    The Council recognized that FMP management of directed salmon 
fisheries would only apply to the portion of the fisheries conducted in 
the EEZ, and that directed fisheries for salmon are more appropriately 
managed as a unit in consideration of all fishery removals to meet in-
river escapement goals. Under the Magnuson-Stevens Act, an FMP only has 
authority to manage the fisheries that occur in the EEZ. The Magnuson-
Stevens Act, at 16 U.S.C. 1856(a) is clear that nothing in it shall be 
construed as extending or diminishing the jurisdiction or authority of 
any state within its boundaries. Absent formal preemption in accordance 
with the Magnuson-Stevens Act (16 U.S.C. 1856(b)), the Magnuson-Stevens 
Act does not provide authority for the Council to manage fisheries in 
state waters, which would be required for the Council to change 
escapement goals or to allocate more salmon to a specific gear group or 
to direct the Alaska Board of Fisheries (Board) to make these types of 
changes.
    The Council determined that continuing to include these areas and 
the sport fishery in the FMP would not serve a useful purpose or result 
in present or future benefits that would justify the costs of 
overlapping Federal management when the State is adequately managing 
the sport fishery and the salmon fisheries that occur in the areas 
removed. The Council determined that the redefined management area in 
the West Area asserts Federal management in those areas and for those 
fisheries in which Federal management serves a useful purpose by 
allowing the State to manage Alaska salmon stocks as seamlessly as 
practicable throughout their range. Under Amendment 12, the FMP 
continues to manage the vast majority of the EEZ, and maintains the 
prohibition on commercial salmon fishing in the redefined West Area.
    Comment 5: Amend the Salmon FMP to (1) Produce management goals and 
objectives for salmon in Cook Inlet consistent with the Magnuson-Steven 
Act and the national standards; (2) delegate day-to-day management and 
implementation of those goals and objectives to the State; and (3) 
provide oversight to ensure that the State complies with those 
management goals and objectives.
    Response: The Council and NMFS declined to amend the FMP as 
requested by the comment. While a primary function of a fishery 
management plan is to specify the Council's goals and objectives for 
the fishery being managed by the plan, each plan must also include 
provisions that address all of the Magnuson-Stevens Act requirements 
for fishery management plans. The Magnuson-Stevens Act, at 16 U.S.C. 
1856(a), provides councils with the authority to establish a fishery 
management plan for a fishery that delegates management of that fishery 
to a state, but it does not exempt such a fishery management plan from 
including provisions required by the Magnuson-Stevens Act for fishery 
management plans. No North Pacific fishery management plan that 
delegates management of a fishery to the State contains only goals and 
objectives with an oversight process. See response to comment 6.

[[Page 75573]]

    Comment 6: The Council's concerns over dual Federal/State 
management for the Cook Inlet Area are irrational. There are a number 
of other fishery management plans whereby the Council sets management 
goals and objectives for the fishery and then delegates management to 
the State.
    Response: NMFS and the Council have determined that Federal 
management of the commercial salmon fisheries that occur in the Cook 
Inlet Area is not necessary, would serve no useful purpose, and would 
be costly and burdensome for managers and participants. The response to 
comment 4 provides the Council's and NMFS' reasons for this decision.
    The comment incorrectly states that there are other fishery 
management plans that only set goals and objectives and delegate 
management to the State. As explained in EA section 2.2, the Council 
has two FMPs that cooperatively manage the subject fisheries with the 
State--the Fishery Management Plan for the Bering Sea/Aleutian Islands 
King and Tanner Crabs and the Fishery Management Plan for the Scallop 
Fisheries off Alaska.
    These two fishery management plans contain much more than just 
management goals and objectives. Both plans implement Federal 
management measures, delegate specific categories of management 
measures to the State, and establish a process for delineating roles 
and responsibilities between State and Federal managers. These fishery 
management plans have provisions, either implemented by NMFS or the 
State, that address each requirement in Magnuson-Steven Act (16 U.S.C. 
1853(a)). Examples of Federal management measures included in these 
plans are Federal limited access programs, on-board observer coverage 
requirements, and mandatory vessel monitoring systems. These fishery 
management plans require extensive coordination among NMFS, Council, 
and State staffs and between the Council, NMFS, and the Alaska Board of 
Fisheries.
    Joint Federal and State management of the net fishing areas would 
also add burdens to fishery participants as management measures would 
be implemented by both Federal and State managers. This change would 
require fishery participants to attend or follow Board and Council 
processes as decisions regarding different aspects of management are 
made by these different bodies.
    Comment 7: The Council failed to consider the lack of meaningful 
opportunity for salmon industry participants and stakeholders to share 
concerns and experience in a substantive manner during the FMP review 
process.
    Response: NMFS disagrees. Under the Magnuson-Steven Act, the 
Council is responsible for developing fishery management plans, and 
stakeholders have an opportunity to express their opinions on the 
action being considered through oral and written testimony at public 
meetings that are noticed in the Federal Register. The public can also 
review and comment on analytical documents being developed by the 
Council prior to, or during, these regularly scheduled Council 
meetings. Salmon industry participants had the same meaningful 
opportunity for participation as all members of the public do for 
Council actions.
    The Council considered revisions to the FMP at five separate 
meetings that occurred over more than a year, starting with a Council 
and Board Joint Protocol Committee meeting in October 2010 (75 FR 
55743, September 14, 2010). At each regularly scheduled and noticed 
public meeting, the Council took public testimony and considered 
written and oral public comments, providing stakeholders with 
opportunities for involvement on this issue. Additionally, the Council 
conducted a special open workshop for stakeholders in September 2011 
(76 FR 52942, August 24, 2011). More than 20 members of the public, 
three Council members, Council staff, and State and Federal agency 
staff attended this workshop. Council staff presented a report from 
this workshop at the October 2011 Council meeting. The Council 
considered the comments and suggestions made during that workshop in 
developing Amendment 12.
    Comment 8: The EA fails to discuss the status or trends of the Cook 
Inlet salmon fisheries or adequately describe the population status and 
trends of the salmon stocks in Cook Inlet. The EA does not evaluate 
whether these stocks are increasing, stable, or decreasing. Without 
such a baseline, the Council cannot properly evaluate the impacts of 
its decision to completely turn over management to the State.
    Response: Contrary to the comment's assertions concerning the 
contents of the EA, the EA prepared for Amendment 12 provides detailed 
information on, and analysis of, the commercial and sport salmon 
fisheries that occur in the Cook Inlet Area and the status and trends 
of Cook Inlet salmon (see ADDRESSES).
    EA Chapter 4 contains a comprehensive discussion of how the State 
manages the Cook Inlet commercial and sport salmon fisheries that occur 
in the EEZ along with harvest and economic information. EA Chapter 4 
also contains a table showing the trends in the Cook Inlet drift 
gillnet salmon harvests compared to total Cook Inlet salmon harvests 
associated with directed commercial fisheries from 1991 through 2010.
    EA Chapter 5 contains a comprehensive discussion of the status of 
the salmon stocks in Cook Inlet, including an overview of salmon stocks 
in Cook Inlet for which escapement goals exist, a numerical description 
of the goal, type of goal, year the current goal was first implemented, 
and recent years' escapement data for each stock. It also includes 
summary statistics documenting performance in achieving escapement 
goals. In EA Chapter 5, escapements from 2002 through 2010 are compared 
against escapement goals in place at the time of enumeration to assess 
outcomes in achieving goals. Escapements for a particular stock were 
classified as ``below'' if escapement for a given year was less than 
the lower bound of the escapement goal. If escapement fell within the 
escapement goal range or was greater than a lower-bound goal, 
escapements were classified as ``met.'' Where escapements exceeded the 
upper bound of an escapement goal range, they were classified as 
``above.'' Additionally, where escapement goals or enumeration methods 
changed between 2002 and 2010 for a stock, EA Chapter 5 assesses 
outcomes by comparing escapement estimates with the escapement goals 
and methods in place at the time of the fishery.
    The Council considered this information and analysis to evaluate 
the impacts of the various alternatives under consideration by the 
Council, including Amendment 12. Based on this information, as well as 
other information in the EA and public comments received, the Council 
and NMFS concluded that Federal conservation and management are not 
necessary for the salmon fisheries in the Cook Inlet Area and approved 
Amendment 12, which maintains exclusive State management of the Cook 
Inlet Area salmon fisheries.
    Comment 9: The State is not properly managing salmon escapement in 
Cook Inlet and the EA fails to address the impacts of over-escapement. 
State management decisions allow significant harvestable surplus to go 
unutilized resulting in over-escapement. Over-escapement is 
particularly damaging to sockeye, which utilize lakes as part of their 
life cycle. Every over-escapement event results in (1) lost yield in 
the year of over-escapement (because the harvestable surplus escaped), 
and (2)

[[Page 75574]]

additional lost yields three to five years later, when the impacted 
juveniles return in diminished numbers. Given the State's current track 
record of escapement exceeding the high end of the escapement goals as 
much as 35 percent of the time, and its practice of setting escapement 
goals that are already well above MSY, the impact of continuing to 
defer to the State must be considered.
    Response: The Council and NMFS determined, based on the information 
and analysis provided in the EA, that the State is properly managing 
salmon escapement in Cook Inlet. First, the EA does assess the impacts 
of continuing State salmon management, which includes the escapement 
goals established by the State, instances when escapement goals are 
exceeded, and the effects of over-escapement on salmon stocks. As 
detailed in EA sections 3.2, 4.1, and 5.1, where possible, the State 
sets salmon escapement goals in Cook Inlet based on MSY. For instance, 
the current escapement goals for sockeye salmon in the Kenai and 
Kasilof rivers are set at approximately 90 to 100 percent of MSY.
    It is not possible to manage mixed stock salmon fisheries for MSY 
on all stocks and species in circumstances where the composition, 
abundance, and productivity of stocks and species in those fisheries 
varies substantially. Over-escapement is a common occurrence in areas 
with salmon fisheries in the EEZ, as shown in the EA section 5.1.2. 
Over-escapement means that the number of spawning salmon exceeds the 
upper bound of the escapement goal range established for any particular 
system. Over-escapement usually results from (1) A lack of fishing 
effort, (2) unexpectedly large salmon runs, or (3) management or 
economic constraints on the fishery. Management constraints result, in 
part, from State management of salmon fisheries for maximum harvest of 
the largest, most productive salmon stocks, while protecting less 
abundant salmon stocks and species. Currently, the State considers a 
number of salmon stocks in Upper Cook Inlet as stocks of concern. The 
State has established clearly-defined goals to manage salmon to provide 
for escapement of identified stocks of concern within mixed-stock 
fisheries (see the description of the State's Policy for the Management 
of Mixed Stock Salmon Fisheries (5AAC 39.220) in EA section 4.1). 
Layering Federal management on top of State management for the 
commercial fisheries in the Cook Inlet Area would not reduce the 
potential for over-escapement or address any of the factors that cause 
over-escapement. As discussed in EA section 2.2, Federal management of 
the fishery in the Cook Inlet Area would be responsive to State 
management decisions. In response to this comment, NMFS has revised the 
EA section 5.1 to expand the discussion on over-escapement to better 
explain the issue.
    Comment 10: The State has no escapement goals or estimates of MSY 
for many salmon runs in Cook Inlet. Without escapement goals, the State 
has no idea of the health of the salmon returns or whether they are 
being managed in a manner consistent with either the Magnuson-Stevens 
Act or the State's sustainable salmon policy.
    Response: According to the State, they do not have the necessary 
resources to monitor all the salmon runs in Cook Inlet. Therefore, the 
State does not have the information necessary to set escapement goals 
or estimate MSY for many of the salmon runs. However, the State (in 
conjunction with salmon resource users) has identified the most 
important species and runs, and has tried to monitor those salmon runs. 
Currently, the State monitors the largest runs of sockeye and Chinook 
salmon in Cook Inlet. Even though the State does not monitor some of 
the smaller stocks of sockeye, Chinook, pink, chum, and coho, the State 
has other information (catch and test fish indices) to indirectly 
monitor the abundance on some of these species. The State manages all 
the salmon stocks in Upper Cook Inlet based on the information it 
collects from indicator stocks (stocks that can be assessed) and the 
performance of salmon fisheries in Upper Cook Inlet. In the absence of 
specific stock information, the State has managed these stocks 
conservatively following the precautionary principle, similar to the 
National Standard 1 Guidelines for dealing with data poor stocks (50 
CFR 600.10). Therefore, in the absence of information, the State is 
managing the data-poor salmon runs consistently with the Magnuson-
Steven Act and consistently with the way NMFS manages data-poor fish 
stocks.
    Continuing to include the Cook Inlet Area in the FMP would not 
necessarily improve the scientific information available for individual 
salmon runs. NMFS does not independently monitor returns of Cook Inlet 
salmon stocks or assess Cook Inlet salmon abundance. The biology of 
salmon is such that escapement is the point in the species life history 
best suited to routine assessment and long-term monitoring. The State 
collects information on Cook Inlet salmon escapement--returns of 
specific salmon stocks to specific river systems--from sampling sites 
(e.g., weirs, sonar stations, counting towers) that are located within 
State waters and NMFS relies on this information. It is not possible to 
collect information on escapement or run strength from sampling in the 
EEZ. Given that the Magnuson-Stevens Act does not provide NMFS with the 
authority to manage salmon resources within State waters, absent 
preemption in accordance with the Magnuson-Stevens Act (16 U.S.C. 
1856(b)), and extensive information is already collected by the State 
on numerous salmon stocks, NMFS would have limited ability to 
independently collect escapement information.
    Additionally, NMFS, like the State, has limited funds for stocks 
assessment research. NMFS allocates research funds based on national 
and regional priorities, and would need to eliminate or reduce an 
existing project to start a new project to gather the scientific 
information necessary to conduct a stock assessment for any given 
salmon run.
    Comment 11: The State's sustained yield principle is not the same 
as the Magnuson-Stevens Act's OY; therefore it is not consistent with 
National Standard 1.
    Response: For the following reasons, the Council and NMFS 
determined that the State's sustained yield principle is equivalent to 
the Magnuson-Stevens Act's OY and that it achieves the objectives of 
National Standard 1 (16 U.S.C. 1851(a)(1)). The Magnuson-Stevens Act 
defines OY as the amount of fish which:
    (A) Will provide the greatest overall benefit to the Nation, 
particularly with respect to food production and recreational 
opportunities, and taking into account the protection of marine 
ecosystems;
    (B) is prescribed as such on the basis of the maximum sustainable 
yield from the fishery, as reduced by any relevant economic, social, or 
ecological factor; and
    (C) in the case of an overfished fishery, provides for rebuilding 
to a level consistent with producing the maximum sustainable yield in 
such fishery.
    The Magnuson-Stevens Act does not prescribe the method for 
determining OY and NMFS uses various methods to determine OY throughout 
the Nation, depending on the information available and the unique 
characteristics of specific fisheries. For Alaska salmon, the Council 
and NMFS determined that the State's sustained yield principle is 
equivalent to OY because it represents MSY as reduced by relevant 
economic, social, and ecological factors.

[[Page 75575]]

    The Council determined that the State's salmon escapement goal 
management is the appropriate approach for satisfying the National 
Standard 1 requirements of the Magnuson-Stevens Act. The biology of 
salmon is such that escapement is the point in the species life history 
best suited to routine assessment and long-term monitoring and is the 
metric most commonly used for assessing the status of salmon stocks. 
The State establishes escapement goals intended to maximize surplus 
productivity of future runs, estimates run strength in advance, 
monitors actual run strength and escapement during the fishery, and 
utilizes in-season management measures, including fishery closures, to 
ensure that minimum escapement goals are achieved.
    The State sets salmon escapement goals based on the Policy for the 
Management of Sustainable Salmon Fisheries (SSFP; 5 AAC 39222) and the 
Policy for Statewide Salmon Escapement Goals (5 AAC 39.223). These 
policies ensure that the State's salmon stocks are conserved, managed, 
and developed using the sustained yield principle. These policies 
require the State to set escapement goals based on the sustained yield 
principle. The SSFP goes on to identify escapement goals based on MSY 
as biological escapement goals and those based on sustained yield as 
sustainable escapement goals. The State set sustainable escapement 
goals in the absence of adequate escapement and/or stock specific catch 
information to set a biological escapement goals and when the State is 
unable to determine what level of escapement would produce MSY.
    Comment 12: The State is not managing the Cook Inlet salmon fishery 
in a manner consistent with the Magnuson-Stevens Act's National 
Standards. Therefore, the Council and NMFS cannot facilitate State 
salmon management in accordance with the Magnuson-Stevens Act and 
should not remove the Cook Inlet Area from the FMP. The Council failed 
to consider the consequences of removing the ten National Standards 
from Cook Inlet Area salmon management and how that will impact 
sustainability of salmon returns over time.
    Response: As explained in EA sections 4.3.1 and 5.1, the Council 
and NMFS assessed the State's current salmon management and the 
sustainability of salmon returns under the current management 
procedures, and determined that current management, as codified in the 
Alaska constitution, laws, regulations, and policies, is consistent 
with the Magnuson-Stevens Act's national standards. For this and other 
reasons explained in this preamble and the EA, the Council and NMFS 
concluded that Federal conservation and management are not required and 
would not serve a useful purpose.
    Comment 13: The State fails to meet National Standard 2 (best 
available science) because the Alaska Board of Fisheries (Board) 
process is based on the ``best available politics,'' is ad hoc, and 
fails to consider the scientific, economic, and social ramifications of 
the Board's actions. The Council failed to consider that the current 
State regulatory system allows for in-season salmon management 
decisions to be regularly influenced by a few politically connected 
individuals despite professional biologists recommendations or 
direction.
    Response: NMFS disagrees. The Board decision-making process 
achieves the objectives of National Standard 2. The Board is 
responsible for (1) Considering and adopting regulations through a 
public process to conserve and allocate fisheries resources to various 
user groups, (2) establishing fish reserves and conservation areas, 
fishing seasons, quotas, bag limits and size restrictions, (3) 
protecting habitat, (4) recommending stock enhancement, and (5) 
developing commercial, subsistence, sport and personal use fisheries. 
The Board consists of seven members who are appointed by the Alaska 
Governor and confirmed by the State Legislature. Members are appointed 
on the basis of interest in public affairs, good judgment, knowledge, 
and ability in the field of action of the Board, with a view to 
providing diversity of interest and points of view in the membership 
(see Alaska Statute 16.05.221).
    As with the Federal regional management council system, the Board 
considers and weighs all of the information available to it in making 
its decisions. In fulfilling its responsibilities, the Board process 
utilizes the best science available to it--primarily provided by 
ADF&G--and considers the economic and social ramifications of the 
Board's actions. Through its process, the Board considers and applies 
allocative criteria (AS 16.05.251(e), 5 AA 39.205, 5 AAC 75.017, 5 AAC 
77.007, and Board Finding 91-129-FB), the Policy for the 
Management of Sustainable Salmon Fisheries (5 AAC 39.222), the Policy 
for the Management of Mixed Stock Salmon Fisheries (5 AAC 39.220), and 
information provided to it by the Alaska Commercial Fisheries Entry 
Commission and Alaska Department of Commerce, Community, and Economic 
Development, ADF&G's economic research, and any information provided by 
members of the public.
    The Council and NMFS considered the State's inseason salmon 
management process and decisions, as described in EA Chapter 4. The 
comment did not provide any evidence to support the assertion that the 
State's inseason management decisions are influenced by a few 
politically connected individuals despite professional biologists' 
recommendations or direction.
    Comment 14: The Council's analysis under National Standard 7 is 
legally and factually flawed. Each factor of the National Standard 7 
Guidelines weighs heavily in favor of developing an FMP for Cook Inlet.
    Response: Amendment 12 is consistent with National Standard 7, as 
explained in EA section 2.5.1. While the commenter may not agree with 
the Council's and NMFS' decision, the analysis is not legally or 
factually flawed. National Standard 7 states that conservation and 
management measures shall, where practicable, minimize costs and avoid 
unnecessary duplication. NMFS' National Standard 7 Guidelines provide 
the criteria for deciding whether a fishery needs management under an 
FMP (50 CFR 600.340). The Guidelines state that the principle that not 
every fishery needs management through regulations implementing an FMP 
is implicit in National Standard 7. The Guidelines also state that 
Councils should prepare FMPs only for overfished fisheries and for 
other fisheries where regulation would serve some useful purpose and 
where the present or future benefits of regulation would justify the 
costs.
    The National Standard 7 Guidelines provide seven general factors 
that should be considered, among others, in deciding whether a fishery 
needs management through regulations implementing an FMP. EA section 
2.5.1 compares how each alternative addresses each National Standard 7 
factor. Each factor and the Council's and NMFS' determinations for 
Amendment 12 are summarized as follows--
    (1) The importance of the fishery to the Nation and to the regional 
economy. The Council and NMFS determined that Amendment 12 will not 
change the importance of the salmon fishery in the regional economy of 
Cook Inlet or for the Nation because the State will remain as the 
primary manager of the fishery, and the vast majority of the EEZ will 
remain closed to commercial salmon fishing. EA section 4.5.2 provides 
detailed information on the economic

[[Page 75576]]

importance of the Cook Inlet salmon fishery in the EEZ.
    (2) The condition of the stock or stocks of fish and whether an FMP 
can improve or maintain that condition. The Council and NMFS determined 
an FMP would not improve or maintain the condition of the salmon stocks 
in the Cook Inlet Area. Including the Cook Inlet Area in the FMP would 
not improve the condition of salmon stocks since the FMP could not 
control harvests in state waters or ensure escapement goals are met. 
The Council and NMFS recognized that the State is in a unique position 
to manage Alaska salmon as a unit in consideration of all fishery 
removals and to meet escapement goals. The condition of each salmon 
stock is a result of many factors, including harvest by a number of 
fisheries that target salmon throughout their range. EA section 5.1 
describes the condition of the Cook Inlet salmon stocks.
    (3) The extent to which the fishery could be or is already 
adequately managed by states, by state/federal programs, by federal 
regulations pursuant to FMPs or international commissions, or by 
industry self-regulation, consistent with the policies and standards of 
the Magnuson-Stevens Act. The State has managed the salmon fisheries 
since statehood in 1959 and the Council and NMFS have relied on State 
management of the salmon fisheries in the EEZ since 1979. As such, the 
Council and NMFS have determined that salmon fisheries are adequately 
managed by the State; therefore, the Council and NMFS only considered 
the role of federal management given existing State management. The 
Council and NMFS have determined that State salmon management is 
consistent with the policies and standards of the Magnuson-Stevens Act, 
as explained throughout the EA.
    (4) The need to resolve competing interests and conflicts among 
user groups and whether an FMP can further that resolution. Competing 
interests and conflicts exist among user groups that harvest salmon 
throughout its range, as explained in EA Chapter 4. The Council and 
NMFS determined that including the Cook Inlet Area in the FMP would not 
further the resolution of the State's difficult task of allocating 
salmon to the multiple user groups--subsistence, sport, personal use, 
and different commercial gear types--that harvest salmon from EEZ 
waters through to headwaters of Alaska streams and rivers. Amendment 12 
actually minimizes potential conflicts by prohibiting commercial salmon 
fishing in the vast majority of the EEZ to allow salmon to return to 
their natal region and be available for harvest by various user groups 
in those areas.
    (5) The economic condition of a fishery and whether an FMP can 
produce more efficient utilization. The Council and NMFS recognized 
that the economic conditions of the fishery and the efficiency of the 
utilization are closely tied to State salmon management. The Council 
and NMFS determined that including the Cook Inlet Area in the FMP would 
not change the economic conditions of these fisheries or change the 
efficiency of the utilization of salmon resources. EA section 4.5.2 
describes the economic conditions of the FMP salmon fisheries in the 
Cook Inlet Area.
    (6) The needs of a developing fishery, and whether an FMP can 
foster orderly growth. The Council and NMFS determined that Amendment 
12 fosters orderly growth of salmon fishing in the Cook Inlet Area and 
other natal regions, by predominantly closing EEZ waters.
    (7) The costs associated with an FMP, balanced against the 
benefits. Neither the Council nor NMFS identified any benefits of an 
additional layer of federal management on top of State salmon 
management for the fisheries in the Cook Inlet Area. The Council and 
NMFS determined that applying federal management would be costly, 
redundant, and not provide any conservation or management benefits. As 
discussed in EA Chapter 5, an FMP in the Cook Inlet Area would not 
further NMFS' obligations under the Marine Mammal Protection Act or 
Endangered Species Act, or to Essential Fish Habitat, and therefore is 
not beneficial from the perspective of other marine resources. An FMP 
would not benefit the condition of salmon stocks in these areas, as 
discussed above. While there is the perception that an FMP could 
benefit certain salmon fishermen in the Cook Inlet Area relative to 
other salmon user groups, that perception is not supported by current 
federal management practices.
    The Council and NMFS determined that the EA's analysis of the 
factors to be considered in the National Standard 7 guidelines support 
the decision to redefine the FMP's fishery management unit to exclude 
the net fishing areas where salmon fisheries are already adequately 
managed by the State. This decision minimizes the costs associated with 
creating Federal management and layering Federal management on top of 
existing State management and avoids unnecessary duplication with 
existing State management.
    Comment 15: Amendment 12 is directly contrary to National Standard 
3. Federal abdication of salmon fishery management in those areas of 
the EEZ that are removed from the FMP under Amendment 12 does not 
create seamless management. Vessels registered with the State would be 
subject to State regulations when fishing in those areas; vessels not 
registered with the State would be unregulated when fishing in those 
areas. Additionally, the Federal government would still have management 
authority over salmon subsistence harvest in Federal inland waters and 
for managing salmon subject to international treaties.
    Response: The Council and NMFS determined that Amendment 12 is 
consistent with National Standard 3, as explained in EA section 2.5.1. 
National Standard 3 states that, to the extent practicable, an 
individual stock of fish shall be managed as a unit throughout its 
range, and interrelated stocks of fish shall be managed as a unit or in 
close coordination (16 U.S.C. 1851(a)(3)). National Standard 3 
guidelines explain how to structure appropriate management units for 
stocks and stock complexes (Sec.  600.320). The Guidelines state that 
the purpose of the standard is to induce a comprehensive approach to 
fishery management (Sec.  600.320(b)). The guidelines define 
``management unit'' as ``a fishery or that portion of a fishery 
identified in an FMP as relevant to the FMP's management objectives,'' 
and state that the choice of a management unit ``depends on the focus 
of the FMP's objectives and may be organized around biological, 
geographic, economic, technical, social, or ecological perspectives'' 
(Sec.  600.320(d)).
    The Council and NMFS determined that prohibiting commercial fishing 
in the redefined West Area and removing the net fishing areas and the 
sport fishery in the West Area from the scope of the FMP would best 
enable the State to manage salmon as a unit throughout their range. 
This approach recognizes that the biology of salmon is such that 
escapement is the point in the species' life history that is most 
appropriate for assessing stock status, and that escapement happens in 
the river systems, not in the EEZ waters. The State manages for all 
sources of fishing mortality, from the commercial fisheries in the EEZ 
to the in-river subsistence fisheries. The State monitors actual run 
strength and escapement during the fishery, and utilizes in-season 
management measures, including fishery closures, to ensure that minimum 
escapement goals are achieved. National Standard 3 guidelines provide 
councils and NMFS with discretion to determine the appropriate 
management unit for a stock

[[Page 75577]]

or stock complex under an FMP and clearly contemplate that the selected 
management unit may not encompass all Federal waters if, such as here, 
complementary management exists for a separate geographic area (Sec.  
600.320(e)(2)).
    Additionally, managing a stock as a unit, consistent with National 
Standard 3, does not require exclusive management by a single 
governmental entity throughout the stock's entire range. The fact that 
the U.S. Fish and Wildlife Service manages subsistence salmon fishing 
on Federal lands, or that the Convention for the Conservation of 
Anadromous Stocks in the North Pacific Ocean defines management 
authority for salmon in international waters beyond the U.S. EEZ, does 
not constrain or otherwise limit the Council's and NMFS' ability to 
determine if Federal conservation and management are necessary for the 
commercial and sport salmon fisheries that occur in Federal waters 
adjacent to Cook Inlet.
    The Council, NMFS, and the State recognized that removing the net 
fishing areas from the FMP could create an opportunity for unregulated 
commercial salmon fishing activity by U.S. vessels in those areas. The 
Council and NMFS assessed this risk and concluded that unregulated 
fishing is unlikely due to the risk and limitations associated with a 
business plan dependent on fishing relatively small pockets of salmon 
fishing grounds separated by substantial distance, avoiding entry into 
state waters under any circumstance, and shedding all state permits and 
licenses. Responses to comments 16 through 20 address this point with 
additional detail. The Council and NMFS determined that removing the 
net fishing areas from the FMP does not pose a risk to the overall 
conservation or management of salmon resources within these areas.
    Comment 16: Amendment 12 has the ability to change the importance 
of the commercial fisheries in their regional economies or for the 
Nation because it (a) opens the EEZ to unregulated fishing that will 
draw resources away from permit holders, local processors, and the 
regional community, and (b) the current problems associated with State 
management in Cook Inlet will continue to erode the importance of these 
fisheries.
    Response: NMFS disagrees. Amendment 12 does not open the EEZ to 
unregulated fishing. Fishing for salmon in the vast majority of the EEZ 
will continue to be regulated under the FMP. The Council and NMFS 
expect that all vessels fishing for salmon in the net fishing areas 
will be regulated by the State. In recommending and approving Amendment 
12, the Council and NMFS considered the risks associated with removing 
the net fishing areas from the FMP and determined that the risk of 
unregulated fishing in these areas is negligible. As explained in EA 
section 2.5.2, a vessel not registered with the State may be able to 
circumvent the application of State regulations within the net fishing 
areas if the vessel never enters State waters and has no contacts with 
the State. While this scenario is possible, the practical constraints 
on such a scenario make it unlikely to occur. First, the net fishing 
areas are in remote locations, far from any port other than an Alaskan 
port. A large vessel would likely be required for such fishing because 
it would have to carry onboard everything it would need for the entire 
fishing trip to avoid entry into State waters under any circumstance. 
According to the State, if a vessel involved in unregulated fishing 
entered State waters for fuel, supplies, or a mechanical or medical 
emergency, the vessel would be subject to State enforcement--greatly 
increasing the risk of failure for such a business plan. Additionally, 
a large vessel that had to prepare for any contingency would have high 
operating costs, but the net fishing areas are relatively small pockets 
of salmon fishing grounds that may not provide the return needed to 
cover such costs. Finally, such a vessel would have to shed all State 
permits and licenses.
    As explained in EA section 2.5.2, inherent in the Council's 
recommendation and NMFS' approval of Amendment 12 is the conclusion 
that commercial and sport salmon fishermen will be registered with the 
State when fishing for salmon in these areas, and subject to the laws 
of the State governing commercial and sport salmon fishing. Based on 
the logistical complications and business risks identified in the EA 
and summarized above, it is reasonable to expect that salmon fishing 
occurring in the net fishing areas will be by vessels registered with 
the State and that fishing in these areas will be regulated by the 
State. Removal of these areas from the FMP does not indicate the 
Council's or NMFS' intent for unregulated salmon fishing to occur in 
these areas.
    Based on available information, NMFS does not agree with the 
conclusion that current State management erodes the importance of the 
salmon fisheries in regional economies or for the Nation. See response 
to comment 23 on the performance of the 2011 commercial fishery in the 
Cook Inlet Area.
    Comment 17: Amendment 12 creates a jurisdictional loophole for 
unregulated fishing in the EEZ. Neither the State nor NMFS has any 
mechanism in place to deal with this unregulated fishing by vessels not 
registered with the State, instead relying on hope that no one will 
exploit this attractive option. The EA underestimates the potential 
harm that could result from unregulated fishing in the EEZ. The only 
available solution, closing the EEZ waters, would further harm existing 
permit holders.
    Response: The response to comment 16 explains why the Council and 
NMFS determined that unregulated fishing in the net fishing areas is 
unlikely to occur. Given the significant risks and practical 
limitations associated with any attempt to conduct unregulated fishing 
in the net fishing areas, the Council and NMFS reasonably concluded 
that such activity is unlikely to occur and the EA adequately analyzes 
the potential harm.
    If unregulated fishing does occur, the Council and NMFS could take 
action under the Magnuson-Stevens Act to regulate salmon fishing in the 
net fishing areas. While it is difficult to predict what action would 
be taken, it is likely that the action taken would be tailored to the 
extent and severity of the problem identified. One action could be to 
assert Federal management over the net fishing areas and close the 
areas to fishing while the Council develops a long-term solution. As 
both the commenter and EA section 2.5.2 note, closing the net fishing 
areas would impose costs on all operations utilizing these salmon 
fishing areas, including the State-regulated participants operating in 
these areas.
    Comment 18: The Council should not rely on the State's assurances 
that they can prosecute a vessel not registered with the State for 
salmon fishing in the EEZ to understand the risks of removing Cook 
Inlet waters from the FMP.
    Response: The Council and NMFS did not rely on assurances of 
successful prosecutions by the State as their basis for assessing the 
risk of unregulated fishing in the net fishing areas. The Council and 
NMFS relied on information that demonstrates the significant challenges 
associated with any attempt to successfully conduct unregulated fishing 
in the net fishing areas. The practical limitations identified in the 
EA indicate that unregulated fishing in the net fishing areas is 
unlikely to occur. The EA does not indicate that unregulated fishing is 
likely to occur, but can be successfully prosecuted by the State.
    As explained in the response to comment 16, EA section 2.5.2 
contained information on the risk of unregulated

[[Page 75578]]

fishing in the net fishing areas if they are removed from the FMP. The 
Council and NMFS reviewed this information, considered the geographic 
scope of the EEZ accessible by vessels not registered by the State, the 
inherent risks of fishing countered by the inability of such vessels to 
enter Alaskan ports, the potential amount of salmon fishery resources 
that may be accessible to make such an endeavor profitable, and the 
need to shed all State permits and licenses. Based on this information, 
the Council and NMFS concluded that there was a negligible risk that 
unregistered vessels would prosecute a directed salmon fishery within 
this limited area, and that this negligible level of risk did not 
warrant retaining the net fishing areas in the FMP.
    Comment 19: Removing these areas from the FMP opens the door to 
unregulated fishing by vessels not registered in the State of Alaska. 
Should unregulated fishing occur, NMFS will be unable to implement 
emergency measures to regulate commercial fishing in these areas, 
because this scenario has been publicly debated and considered by the 
Council. Likely, any amendment that opens the door to unregulated 
fishing would be found inconsistent with the Magnuson-Stevens Act, and 
would be sent back for review by a Federal court.
    Response: The response to comment 16 explains why the Council and 
NMFS determined that unregulated fishing in the net fishing areas is 
unlikely to occur and why Amendment 12 does not open the door to 
unregulated fishing in the net fishing areas.
    As explained in the response to comment 17, in the unlikely event 
that unregulated fishing does occur in the net fishing areas, the 
Council and NMFS could take action under the Magnuson-Stevens Act to 
regulate salmon fishing in these areas. However, in order to take 
emergency action under the Magnuson-Stevens Act (16 U.S.C. 1855(c)), 
the Council must find that an emergency exists. NMFS guidelines provide 
that an emergency is a situation that: (1) Results from recent, 
unforeseen events or recently discovered circumstances; (2) presents 
serious conservation or management problems in the fishery; and (3) can 
be addressed through emergency regulations for which the immediate 
benefits outweigh the value of advanced notice, public comment, and 
deliberative consideration of the impacts on participants to the same 
extent as would be expected under the normal rulemaking process (62 FR 
44421, August 21, 1997).
    The commenter concludes that because the risk of unregulated 
fishing in the net fishing areas has been publicly debated and 
considered by the Council, unregulated fishing would not meet the 
emergency criterion that an event be unforeseen. It is premature to 
determine whether unregulated fishing in the net fishing areas would or 
would not meet the emergency criteria. However, as explained in the 
response to comment 18, the Council and NMFS have determined, based on 
the best information available, that unregulated fishing is unlikely to 
occur. If unregulated fishing does occur, an argument may exist that it 
was unforeseen. If the best information available had indicated that 
unregulated fishing in the net fishing areas was likely and the Council 
still chose to remove these areas from the FMP, it would be more 
difficult to conclude that future unregulated fishing in the net 
fishing areas is an unforeseen event.
    Comment 20: The Council has no legal authority to carve out part of 
the EEZ from the scope of its jurisdiction or to develop an FMP for 
only a certain geographic range of a stock.
    Response: Amendment 12 does not remove the net fishing areas from 
the Council's jurisdiction under the Magnuson-Stevens Act. The Council 
continues to have authority over the fisheries in the Arctic Ocean, 
Bering Sea, and Pacific Ocean seaward of Alaska (16 U.S.C. 
1852(a)(1)(G)). In adopting Amendment 12, the Council chose not to 
exercise this authority for salmon fisheries occurring in the net 
fishing areas. The Magnuson-Stevens Act provides the Council with broad 
discretion in determining whether a fishery is in need of conservation 
and management. As explained in the response to comment 15, National 
Standard 3 guidelines provide councils and NMFS with discretion to 
determine the appropriate management unit for a stock or stock complex 
under an FMP and clearly contemplate that the selected management unit 
may not encompass all Federal waters if complementary management exists 
for a separate geographic area (50 CFR 600.320). Additionally, National 
Standard 7 guidelines provide the criteria for determining whether a 
fishery needs management and state that councils should prepare FMPs 
only for fisheries where regulation would serve some useful purpose and 
where present or future benefits of regulation would justify the costs 
(50 CFR 600.340). Under the Magnuson-Stevens Act and National Standards 
3 and 7, the Council has the authority to develop an FMP that includes 
a geographic management unit for a fishery that is less than the entire 
EEZ if the Council can provide a reasonable explanation as to why that 
management unit is the appropriate management unit. The Council's 
rationale for Amendment 12 is provided throughout this preamble and in 
the EA prepared for Amendment 12.
    Comment 21: Having an FMP with clearly defined management 
objectives, operating in a transparent process with Secretarial 
oversight of the Board, would lessen the user group conflicts in Cook 
Inlet. While the FMP would only apply to EEZ waters, it would have to 
consider all salmon removals and would provide a forum to ensure that 
the State manages salmon resources in a manner consistent with the 
Magnuson-Stevens Act.
    Response: NMFS does not share the commenter's opinion that FMP 
management of the Cook Inlet Area would reduce the user group conflicts 
in Cook Inlet. Conflicts among different user groups exist in federally 
managed fisheries, as well. Federal management may change the forum for 
user group conflicts in Cook Inlet from the Board to the Council, but 
would not, in and of itself, lessen the conflicts inherent in the 
difficult task of allocating salmon, a finite resource, to the multiple 
user groups--subsistence, sport, personal use, and different commercial 
gear types--that harvest Cook Inlet salmon from EEZ waters through to 
the headwaters of Alaska streams and rivers. Amendment 12 limits user 
group conflicts by prohibiting commercial salmon fishing in the West 
Area, which encompasses the vast majority of the EEZ. The prohibition 
enables salmon from different regions to return to their natal region 
and be available for harvest by various user groups in those areas. 
Again, this position recognizes that salmon are best harvested 
relatively nearshore, where competing interests and conflicts among 
user groups can be resolved by the government entity with management 
authority to regulate harvest by all the user groups. The Fishery 
Impact Statement in EA Chapter 4 describes the multiple salmon 
fisheries managed by the State. Federal fishery management under the 
FMP would only apply in the EEZ, where the commercial fishery is the 
predominant user group. The FMP would have no authority over the 
harvest of salmon within State waters by various other user groups, but 
would have to account for removals within State waters in determining 
the appropriate level of harvest in Federal waters.
    The Council and NMFS determined that the State has clearly defined 
management objectives for Cook Inlet salmon and that its management 
process is transparent. In approving

[[Page 75579]]

Amendment 12, the Council and NMFS determined that Secretarial 
oversight of the Board is not necessary for the conservation and 
management of salmon in the net fishing areas.
    Comment 22: The EA fails to address the impacts on salmon resources 
caused by the unrestricted growth of personal use fisheries on the 
Kenai River. A significant percentage of salmon released by personal 
use fishermen do not survive to spawn and represent unaccounted-for 
removals. This practice is reasonably likely to continue and must be 
considered in the EA.
    Response: Contrary to the commenter's assertion, the EA does 
examine the impacts on salmon caused by all salmon fisheries, including 
the personal use fishery in Cook Inlet. The personal use fishery is a 
consumptive use fishery, which means people harvest salmon for food and 
not for recreation or sport. It occurs entirely within State waters and 
is managed by the State. Generally, fish may be taken for personal use 
purposes only under the authority of a permit issued by ADF&G. ADF&G 
limits the amount and type of gear that can be used to reduce the 
likelihood that Chinook salmon will be gilled and sustain mortal 
injuries. Given that the personal use fishery is for food, it is 
unlikely that any Chinook salmon caught are released in the Kenai River 
personal use fishery. The contention that personal use fishermen 
release Chinook salmon that have been gilled is unfounded.
    The Kenai River personal use fishery has grown as the population of 
Anchorage, the Matanuska-Susitna Valley, and surrounding areas has 
grown. ADF&G estimates that the annual average harvest of Chinook 
salmon in the Kenai River dip net fishery was 816 for the years 1996 
through 2011, and 1,200 for the more recent years 2006 through 2011. 
The annual average number of Upper Cook Inlet personal use salmon 
fishery permits fished was 17,748 permits for the years 1996 through 
2011, and 22,423 permits for the more recent years 2006 through 2011. 
Each holder of an Upper Cook Inlet personal use salmon fishery permit 
is allowed to harvest one Chinook salmon, so the potential harvest is 
much greater than what is actually being taken.
    The EA considers the harvest of salmon that occurs in all salmon 
fisheries, including commercial, personal use, sport, and subsistence 
fisheries. In the cumulative effects analysis, the EA explains that the 
State's first priority for management is to meet spawning escapement 
goals to sustain salmon resources for future generations. The State 
carefully monitors the status of salmon stocks returning to Alaska 
streams and controls fishing pressure on these stocks. Subsistence use 
is the highest priority use under both State and Federal law. Surplus 
fish, or fish in excess of the fish needed for escapement and 
subsistence use, are made available for other uses, such as commercial 
and sport harvests. The Board allocates surplus fish among user groups 
according to Board policy and applicable State law, as described in the 
Fishery Impact Statement (EA Chapter 4). The EA recognizes that other 
salmon fisheries have the most substantial impacts on the salmon 
fisheries that occur in the EEZ because the State comprehensively 
manages salmon stocks and considers each fishery that targets specific 
stocks or stock groupings.
    Comment 23: Having an FMP for the Cook Inlet Area would help assess 
and halt current trends towards diminishing harvests by providing clear 
management goals and objectives and restoring science-based management 
to the fishery.
    Response: Salmon returns are cyclical and harvest data do not 
support the conclusion that there is a trend towards diminishing 
harvests. Salmon that return to Cook Inlet are subject to harvest by 
numerous commercial and non-commercial fisheries in marine waters and 
harvest by subsistence, sport, and personal use fishermen in rivers and 
streams. While the non-commercial fisheries have grown over time as the 
population of southcentral Alaska has grown, the claim that this growth 
has disadvantaged the commercial sector is not supported by available 
information. The 2010 estimate for commercial salmon fishery gross 
earnings was well above average, and only exceeded by the earnings 
reported in 1992, 1993, and 1994. The 2011 commercial harvest of 5.3 
million salmon ranks as the fourth largest overall harvest in the past 
20 years. The commercial ex-vessel value of approximately $51.6 million 
was the fifth highest value since 1960, and represented the highest ex-
vessel value since 1992.
    In 2011, the bulk of the sockeye salmon run came in compacted and 
above forecast. Compact runs are, in general, very difficult to manage. 
The 2011 sockeye salmon run was dynamic in that the run materialized in 
days, not weeks. Catch per unit effort went from a near historic low on 
July 9 to just below a near record high in 5 days, and the record 
harvests soon after. Processors limited deliveries for a period of time 
until they were able to catch up with processing all of the salmon 
harvested.
    Even if the FMP included the Cook Inlet Area, the FMP would be 
limited to allocating the harvestable surplus of salmon among users 
within the EEZ. As explained in EA section 2.2, under the Magnuson-
Stevens Act, an FMP only has authority to manage the fisheries that 
occur in the EEZ. The Magnuson-Stevens Act is clear that nothing in it 
shall be construed as extending or diminishing the jurisdiction or 
authority of any state within its boundaries. Absent formal preemption 
in accordance with Magnuson-Stevens Act (16 U.S.C. 1856(b)), the 
Magnuson-Stevens Act does not provide authority for the Council to 
manage fisheries in state waters, which would be required for the 
Council to change escapement goals or to allocate more salmon to a 
specific user group, or to direct the Board to make these types of 
changes.
    In other instances where a fishery occurs in both state and Federal 
waters, Federal management of the Federal portion of the fishery is 
responsive to state management of the portion in state waters. An 
example of this occurs in the Pacific cod fisheries in the Gulf of 
Alaska and Aleutian Islands. The Federal Pacific cod total allowable 
catch is reduced to account for the State guideline harvest level so 
that total catch does not exceed the Pacific cod annual catch limit.
    Comment 24: The State's erratic management decisions in Cook Inlet 
have made Cook Inlet a difficult commercial environment. Federal 
oversight with a stable FMP and management objectives could return a 
sense of order and predictability to the fishery.
    Response: The Council and NMFS are aware of user group conflicts in 
the Cook Inlet salmon fisheries. However, NMFS does not share the 
commenter's opinion that FMP management of the Cook Inlet Area would 
reduce the user group conflicts or create the order and predictability 
the commenter seeks. The comment provides no examples for the type of 
Federal oversight that would change the commercial environment. As 
explained in the response to comment 23, the Council's and NMFS' 
authority to change State management of salmon fisheries within State 
waters is limited. While the complexities associated with salmon 
management and fluctuations in salmon abundance can make it difficult 
to create a stable and predictable commercial environment, the response 
to comment 23 demonstrates that commercial salmon fisheries in Cook 
Inlet continue to have successful seasons.

[[Page 75580]]

    Comment 25: The Council claims the salmon fisheries in the EEZ are 
fully developed. However, there is a hugely underutilized chum and pink 
fishery in Cook Inlet. The State has been largely unwilling to allow 
the harvest of these fish. An FMP could help develop these fisheries in 
a manner consistent with the national standards.
    Response: As explained in EA section 5.1, the State does not fully 
utilize pink and chum salmon in Upper Cook Inlet, in part, due to the 
State's efforts to conserve coho salmon and to provide for sport 
fisheries on coho salmon. Coho salmon are caught in the commercial 
fisheries directed at pink and chum salmon. Coho salmon are important 
to sport fishermen in Cook Inlet. Consideration of sport fishing 
opportunities is consistent with National Standard 1. It would be 
difficult to harvest additional pink and chum salmon without harvesting 
additional coho salmon that have been allocated to sport fisheries by 
the Board.
    Comment 26: NMFS agrees that Cook Inlet salmon need Federal 
management, as supported by the critical habitat designation for Cook 
Inlet beluga whales under the authority of the Endangered Species Act 
(ESA) and the Cook Inlet Habitat Conservation Strategy. The Council 
failed to consider the impacts of State management decisions on salmon 
essential fish habitat (EFH). The EA fails to address the impacts of 
current and reasonably foreseeable projects in Cook Inlet affecting 
salmon habitat, including those identified by the Cook Inlet Habitat 
Conservation Strategy.
    Response: NMFS does not agree with the assertions made in the 
comment. The commenter is concerned that by removing the Cook Inlet 
Area from the FMP, NMFS will neglect impacts to Cook Inlet salmon and 
salmon habitat even though NMFS has acknowledged the importance of Cook 
Inlet salmon and salmon habitat in the documents identified by the 
commenter. While the commenter brings up a number of habitat-related 
issues, none of them are germane to the Council's and NMFS' decision on 
the appropriate scope of the management unit within the FMP. Under the 
Magnuson-Stevens Act, fishery management plans manage fisheries in 
Federal waters. NMFS protection or management of Cook Inlet beluga 
whales and habitat under the ESA occurs regardless of the FMP's scope.
    As explained in EA Chapter 5, NMFS manages specific marine mammal 
species under the ESA, and that management is not contingent on the 
existence of a fishery management plan. NMFS has identified more than 
one third of Cook Inlet as critical habitat for the Cook Inlet beluga 
whale (76 FR 20180, April 11, 2011). Pacific salmon constitute one of 
the primary constituent elements for the Cook Inlet beluga whale's 
critical habitat. When designating critical habitat under the ESA, NMFS 
is required to identify specific areas, within the geographical area 
occupied by the species, on which are found those physical or 
biological features (1) essential to the conservation of the species, 
and (2) which may require special management considerations or 
protection. As a primary constituent element, NMFS concluded that 
salmon are essential to the conservation of the Cook Inlet beluga whale 
and may require special management considerations or protection in the 
future. The term ``special'' does not necessarily mean ``beyond 
existing.'' The conclusion that Cook Inlet salmon may require special 
management considerations or protection in the future does not mean 
that salmon are presently impaired or that existing laws and 
regulations managing salmon are not sufficient. NMFS continues to work 
with the State to ensure that Cook Inlet beluga whales are considered 
in salmon management planning for Cook Inlet.
    EFH designations are done through a prescribed process, and EFH can 
be designated in both Federal and state waters depending on the habitat 
(water) needs for each life history stage of each FMP species. Because 
of habitat characteristics, Alaska salmon EFH is (1) all Federal and 
state waters (0-200nm) covering juvenile and adult maturing life 
history stages and ranges from Dixon Entrance to Demarcation Bay 
(Arctic), and (2) all freshwaters listed as anadromous for mature, 
juvenile, and egg stages of the five salmon species. Amendment 12 does 
not change the EFH designation for salmon or any of the current EFH 
provisions or NMFS' role in coordination and consultation on EFH. 
Amendment 11 updates the FMP's essential fish habitat provisions based 
upon the best scientific information available. A description of the 
changes made by Amendment 11 is provided in the Notice of Availability 
for Amendments 10, 11, and 12 (77 FR 19605, April 2, 2012) and is not 
repeated here.
    As explained in EA Chapter 5, a number of ongoing and future 
actions impact salmon spawning habitat, including in-river fisheries, 
development, and pollution. A complete discussion of fishing and non-
fishing impacts to salmon habitat is contained in FMP Appendix A. The 
FMP incorporates the new information from NMFS' report ``Impacts to 
Essential Fish Habitat from Non-fishing Activities in Alaska.'' The 
waters and substrates that comprise salmon EFH are susceptible to a 
wide array of human activities unrelated to fishing. Broad categories 
of such activities include mining, dredging, fill, impoundment, 
discharge, water diversions, thermal additions, actions that contribute 
to nonpoint source pollution and sedimentation, introduction of 
potentially hazardous materials, introduction of exotic species, and 
the conversion of aquatic habitat that may eliminate, diminish, or 
disrupt the functions of EFH. For each of these activity categories, 
known and potential adverse impacts to EFH are described in the NMFS 
report. Mechanisms or processes that may cause adverse effects and how 
these may affect habitat function also are described in the NMFS 
report.
    Additionally, coordination and consultation on EFH is required by 
the Magnuson-Stevens Act (16 U.S.C. 1855(b)). However, this 
consultation does not supersede the regulations, rights, interests, or 
jurisdictions of other Federal or state agencies. The NMFS report also 
contains non-binding recommendations for reasonable steps that could be 
taken to avoid or minimize adverse effects of non-fishing activities on 
EFH.
    As the EA points out, non-fishing activities discussed in the NMFS 
report are subject to a variety of regulations and restrictions 
designed to limit environmental impacts under Federal, state, and local 
laws. Any future activity that potentially impacts salmon spawning 
habitat would be subject to these regulations and the Magnuson-Stevens 
Act's EFH consultation requirements. Amendment 12 does not remove or in 
any way diminish these regulations and restrictions or the Magnuson-
Stevens Act requirements for salmon EFH.
    NMFS had proposed the Cook Inlet Habitat Conservation Strategy as 
part of NOAA's national habitat blueprint project. While the NOAA 
Habitat Blueprint starts with increasing efficiencies within NOAA and 
across its programs and offices, it is also designed to foster 
collaboration across Federal, state, and local levels. NMFS has 
determined that Cook Inlet is not the optimum focus area in the Alaska 
Region for this particular initiative at this time. NMFS is working 
cooperatively with the State to identify additional opportunities to 
partner on common actions in priority areas, improve delivery of 
habitat science, and

[[Page 75581]]

encourage complementary habitat conservation actions.
    Comment 27: The State fails to make allowances for the safety of 
life at sea as required by National Standard 10.
    Response: National Standard 10, which applies to Federal fisheries 
management under the Magnuson-Stevens Act, states that conservation and 
management measures shall, to the extent practicable, promote the 
safety of human life at sea (16 U.S.C. 1851(a)(10)).
    Although the State is not required to be consistent with National 
Standard 10 when managing State fisheries within State waters, as 
discussed in EA section 4.6, the State promotes the safety of human 
life at sea. Through its public process, the Board addresses specific 
fishery safety issues as they arise and works to modify its 
regulations, as necessary, in order to increase safety and minimize 
risk of injury or death for all fishery participants. ADF&G promotes 
safety, whenever possible, in its salmon fisheries through management 
practices, support in the regulation formation process, and through 
assistance to enforcement agencies.
    Examples of safety supported through management practices include: 
using emergency orders for daytime openings of salmon fisheries to 
allow fishermen to harvest and deliver fish during daylight hours; 
delaying the opening of weekly fishing periods when severe weather is 
forecasted; and extending fishing time after severe weather to 
encourage fishermen to seek shelter from severe weather because they 
will be able to fish when the weather moderates. An example of safety 
supported through regulation is a limit on the length and size of 
salmon nets that can be used, which moderates harvest levels to 
manageable quantities that fishermen are able to handle more safely. 
Additionally, ADF&G promotes safety through direct assistance to 
enforcement agencies. ADF&G provides information on harvest patterns 
and fishing effort as well as lists of registered vessels to the Alaska 
Wildlife Troopers, NMFS, and the United States Coast Guard. This 
information allows these enforcement agencies to focus efforts in areas 
where the fishing fleets are concentrated, providing on-scene presence 
of enforcement personnel, vessels, aircraft, and expedited reaction 
times when accidents occur.
    Comment 28: The EEZ portion of Cook Inlet is essential to properly 
managing the sockeye fishery to provide an orderly fishery and prevent 
over-escapement.
    Response: It is difficult to understand the point being made by the 
comment in relation to the provisions of Amendment 12. However, this 
point is repeated in comment 42 as one example of how the Cook Inlet 
Area salmon fisheries differ from the Prince William Sound Area and the 
Alaska Peninsula Area salmon fisheries. Because comment 42 provides 
further context for responding to this point, NMFS responds to this 
comment in its response to comment 42.
    Comment 29: The EA overlooks current problems with State management 
of the Cook Inlet salmon fisheries and the State's efforts to 
``terminalize'' the Cook Inlet fisheries. Since 1990, the State has 
progressively shifted fishing efforts out of the EEZ in favor of 
nearshore, or terminal, fishing. This practice ignores the timing 
requirements of the Cook Inlet salmon fishery that occurs in the EEZ 
and results in the loss of quality and loss of harvest opportunities. 
This process has had negative impacts on (1) The health of the stocks, 
by fostering an environment for over-escapement and thus lost future 
yields; (2) the ability to manage the fishery to meet OY; and (3) the 
value of the fish harvested for the fishermen, the processors, and the 
community. These efforts to ``terminalize'' the fishery are ongoing and 
are reasonably likely to continue as a result of the Council's removal 
of the Cook Inlet Area from the Salmon FMP.
    Response: According to information in EA sections 4.3.1 and 5.1, 
the majority of the commercial salmon fisheries in Cook Inlet are mixed 
stock fisheries, including the drift gillnet fishery, which is the only 
commercial salmon fishery currently allowed in the EEZ. Following its 
Mixed Stock Salmon Fisheries Policy, the State has discouraged the 
development or expansion of mixed stock fisheries when the fish that 
comprise those stocks can be harvested after they have separated into 
more discrete stocks. Mixed stocks separate into discrete stocks as 
they migrate towards their rivers of origin. Therefore, as a general 
principle, terminal fisheries harvest discrete stocks and off-shore 
fisheries harvest mixed stocks.
    The State's policy for managing mixed stock salmon fisheries is 
consistent with sustained yield of wild fish stocks. As described in EA 
section 3.4, the Council and NMFS have determined that the State's 
sustained yield principle is equivalent to the Magnuson-Stevens Act's 
principle for OY. Salmon fisheries in Upper Cook Inlet are complex, 
mixed stock fisheries with many divergent users. It is difficult to 
manage salmon fisheries for MSY on all stocks and all salmon species in 
circumstances where the composition, abundance, and productivity of the 
salmon stocks and species in those fisheries vary substantially. The 
State has attempted to ensure the conservation of the resources and 
allocate the harvest of the resources in a manner consistent with the 
goal of maximizing the benefits.
    Available information suggests that the Mixed Stock Salmon 
Fisheries Policy does not have negative impacts on the value of the 
fish harvested for the fishermen, the processors, and the community. It 
is difficult to assess the impacts of State management policy on the 
Cook Inlet commercial fishery due to shifting market demands, 
fluctuations in international currency exchange rates, and the inherent 
variability in salmon run strength. However, as shown in EA Chapter 4, 
the recent total Cook Inlet estimated gross earnings and the estimated 
gross earnings of the Cook Inlet drift gillnet fleet do not show a 
negative trend in earnings from 1991 to 2010. With the exception of the 
late 1980's, there has been a trend of increasing prices for sockeye 
salmon in recent years. In fact, the 2010 estimated gross earnings were 
the highest since 1994, and higher than the average annual earnings 
from 1991 to 2012. Additionally, in 2011 the average price per pound 
for Cook Inlet commercial fishermen was the second highest since 1992. 
The 2011 overall ex-vessel value was the highest since 1992. The ex-
vessel value in 2011 was also the 5th highest since 1960 with the drift 
fleet harvesting 61 percent of those fish, 13 percent above average and 
the highest percent since 1992.
    Comment 30: The strongest part of Amendment 12 is the provision for 
ACLs and AMs, because fishermen will be prevented from overfishing, and 
this provision will allow the salmon to maintain a steady population. 
The use of escapement as opposed to rigid numerical catch limits 
provides for the naturally occurring fluctuation in population.
    Response: NMFS acknowledges the comment.
    Comment 31: The Council did not comply with the ACL and AM 
requirement for Cook Inlet fisheries. Instead of setting ACLs and AMs, 
the Council removed the fisheries from the FMP, which is arbitrary and 
capricious.
    Response: The decision to remove the net fishing areas from the FMP 
was made considering a number of factors. The predominant factors were 
the Council's salmon management policy, the recognition that the State 
is the appropriate authority for managing

[[Page 75582]]

salmon, and the determination that the State is adequately managing 
salmon in the net fishing areas consistent with the policies and 
standards of the Magnuson-Stevens Act. The FMP prohibits commercial 
fishing in the West Area so that the State can continue to manage the 
salmon fisheries in waters adjacent to the West Area, including the 
Cook Inlet Area, Prince William Sound Area, and the Alaska Peninsula 
Area. The Council determined that Federal conservation and management 
are not required for the fisheries that occur in the Cook Inlet Area 
because overfishing is prevented by the State's management program.
    The Council and NMFS determined that the State manages Alaska 
salmon stocks according to the best scientific information available to 
achieve sustainable yield. Information provided in EA Chapter 4 and 
section 5.1 demonstrates that salmon are targeted throughout their 
adult life by a variety of fisheries from commercial mixed stock ocean 
fisheries to terminal net fisheries, sport fisheries, subsistence 
fisheries, and personal use fisheries. Escapement-based management, 
with real-time monitoring of run strength, inherently accounts for 
fishery catch and natural mortality. The State monitors catch in all of 
the salmon fisheries and manages salmon holistically by incorporating 
all the sources of fishing mortality on a particular stock or stock 
complex in calculating the escapement goal range. As explained in EA 
section 3.3, overfishing is prevented by in-season monitoring and data 
collection that indicates when an escapement goal is not being met. 
When the data indicate low run strength due to natural fluctuations in 
salmon abundance, ADF&G closes the fishery to ensure the escapement 
goal range is reached. This may result in low catches for the target 
fisheries, but it prevents overfishing and ensures sustained yield over 
the long term.
    Comment 32: The Council should not adopt the State's escapement 
goals as a proxy for the ACL requirements, but should engage the 
Council's Scientific and Statistical Committee (SSC) and other experts 
including ADF&G to transparently develop statistically and 
scientifically defensible escapement goals for Alaska's salmon 
fisheries.
    Response: The State's salmon management program is based on 
scientifically defensible escapement goals and inseason management 
measures to prevent overfishing. The State's process for establishing 
escapement goals is described in EA section 3.3 and in EA Appendix 1. 
During the development of Amendment 12, NMFS and the Council engaged 
the SSC and ADF&G in determining the best approach for addressing the 
ACL requirement for Alaska salmon. Through that process, and as 
documented in EA section 3.3, the Council and NMFS determined that 
Amendment 12 implements the best approach for addressing the ACL 
requirement for Alaska salmon.
    Amendment 12 does not establish ACLs or AMs in the West Area 
because no commercial salmon fisheries are authorized in the West Area. 
The mechanism to establish ACLs and AMs for the East Area commercial 
troll fishery builds on the FMP's existing framework for establishing 
status determination criteria. Amendment 12 does not establish a 
mechanism for specifying ACLs and AMs for Chinook salmon because the 
Magnuson-Stevens Act exempts stocks managed under an international 
fisheries agreement in which the United States participates from the 
ACL requirement (16 U.S.C. 1853 note). Under Amendment 12, the 
mechanisms for specifying ACLs for Tier 2 (coho salmon) and Tier 3 
(coho, pink, chum, and sockeye salmon stocks managed as mixed-species 
complexes) salmon stocks are established using the State's 
scientifically-based management measures to control catch and prevent 
overfishing. This approach represents an alternative approach to the 
methods prescribed in NMFS' National Standard 1 Guidelines (50 CFR 
600.310) for specifying ACLs. The Council recommended and NMFS approved 
an alternative approach because the State's escapement-based management 
system is a more effective management system for preventing overfishing 
of Alaska salmon than a system that places rigid numeric limits on the 
number of fish that may be caught. Escapement is defined as the annual 
estimated size of the spawning salmon stock in a given river, stream, 
or watershed.
    Comment 33: The Council should not replace the SSC with the State's 
peer review process because the State's process is subject to 
significant political influence.
    Response: NMFS does not agree with the commenter's assertion that 
the State's process is subject to significant political influence.
    As part of Amendment 12, the Council established a peer review 
process in the FMP that utilizes the State's existing salmon expertise 
and processes for developing escapement goals as fishing level 
recommendations. The Council and NMFS carefully reviewed the State's 
process for establishing escapement goals, as described in EA section 
3.3 and in EA Appendix 1. They chose to establish a peer review process 
in the FMP that utilizes existing State salmon expertise and review 
processes for the scientific information used to advise the Council 
about the conservation and management of the salmon fisheries in the 
EEZ. Using the State's process as the peer-review process helps to 
recognize the limited role and expertise of NMFS and the Council in 
salmon fishery management, as well as the State's existing expertise 
and infrastructure. The State, as the peer review body, will work with 
the Council to implement the provisions of the Magnuson-Stevens Act for 
the fisheries managed under the FMP. This peer review process requires 
the State to annually prepare a stock assessment report, using the best 
available scientific information, for the salmon caught in the 
Southeast Alaska troll fishery and provide the stock assessment report 
to the Council. The peer review process is discussed in detail in 
section 3.5 of the EA (see ADDRESSES).
    Comment 34: The EA states that its purpose is to decide whether 
there is a need to supplement the Environmental Impact Statement (EIS) 
for the proposed action, but it is not clear what this means or which 
EIS should be supplemented. The draft EA is rooted in the fundamentally 
false premise that NMFS need only review the previously issued ``Final 
Programmatic Environmental Impact Statement for the Pacific Salmon 
Fisheries Management off the Coasts of Alaska, Washington, Oregon, and 
California'' (Salmon PSEIS) and then decide whether it should be 
supplemented. Indeed, it is not clear that NMFS has ever addressed its 
decision to defer management in Cook Inlet to the State.
    Response: The EA states that ``This environmental assessment (EA) 
analyzes the impacts of the proposed action to revise the Salmon FMP 
and the alternative management approaches considered.'' The EA 
summarizes previous National Environmental Policy Act (NEPA) documents 
for context and background. The EA considers whether the Salmon PEIS 
needs to be supplemented for the East Area because Amendment 12 
maintains the action that was analyzed in that PEIS. It also analyzes 
the impacts of the alternatives on the resource components--salmon 
stocks, ESA-listed Pacific salmon, marine mammals, and seabirds--for 
all four salmon fisheries that occur in the EEZ. For the West Area, the 
EA examines the impacts of status quo management and the ongoing 
fisheries on the resources components. The EA

[[Page 75583]]

provides the best available information on these interactions between 
the salmon fisheries in the EEZ and these resources. See response to 
comment 35.
    As explained in response to comment 36 and EA section 2.1, prior to 
approval of Amendment 12, the FMP was vague as to the deferral of 
management authority to the State in the Cook Inlet Area and included 
no explicit language that the Council and NMFS had delegated management 
in the net fishing areas to the State. As stated in the EA, the Council 
and NMFS' proposed action was to revise and update the FMP to reflect 
the Council's policy for managing salmon fisheries and to comply with 
the Magnuson-Stevens Act. The EA examined four alternatives for 
determining the future scope of the FMP and where Federal conservation 
and management is required: (1) No action; (2) maintain the existing 
geographic scope of the FMP and update the FMP; (3) maintain the FMP in 
the East Area and, in the West Area, modify the FMP to specifically 
exclude the net fishing areas and the sport fishery from the FMP and 
update the FMP; and (4) maintain the FMP in the East Area only and 
update the FMP. Applicable to Alternatives 2, 3 and 4 was the Council's 
position that in areas where the FMP applies, management would be 
delegated to the State. The EA presents the impacts that would occur 
under all the alternatives, including Alternative 2, which includes the 
Cook Inlet Area in the FMP and delegates management of the salmon 
fisheries that occur there to the State.
    Amendment 12 does not delegate management of the salmon fisheries 
in the Cook Inlet Area to the State. Instead of imposing Federal 
management of the salmon fisheries in the West Area and delegating 
management to the State, Amendment 12 removes this area and the 
fisheries that occur within it from fishery management under the FMP. 
The Magnuson-Stevens Act, at 16 U.S.C. 1856(a)(3)(A)(i), provides that 
a state may regulate a fishing vessel outside the boundaries of the 
state if the fishing vessel is registered under the law of that state 
and there is no fishery management plan or other applicable Federal 
fishing regulations for the fishery in which the vessel is operating. 
Under Amendment 12, the State can manage vessels operating in the Cook 
Inlet Area when those vessels are registered with the State.
    Comment 35: A supplemental EIS is required because the physical 
environment of Cook Inlet and the fisheries themselves are drastically 
different in 2012 than they were 22 or 34 years ago.
    Response: While NMFS agrees that the Cook Inlet salmon fisheries 
differ today from when the FMP was originally implemented in 1979 or 
when the FMP was comprehensively amended in 1990 under Amendment 3, 
NMFS disagrees that these changes require the preparation of a 
supplemental EIS. A supplemental EIS would be required if NMFS makes 
substantial changes in the proposed action that are relevant to 
environmental concerns or significant new circumstances or information 
exist relevant to environmental concerns and bear on the proposed 
action or its impacts (40 CFR 1502.9(c)(1)).
    NMFS determined that Amendment 12 is not a substantial change in 
the proposed action, as it maintains the existing salmon management 
structure. Amendment 12 updates the FMP to comply with the current 
Magnuson-Stevens Act requirements, and amends the FMP to more clearly 
reflect the Council's policy with regard to the State's continued 
management authority over commercial fisheries in the net fishing 
areas, the Southeast Alaska commercial troll fishery, and the sport 
fishery. These changes improve the FMP but they do not result in any 
substantive changes to the management of the salmon fisheries that 
occur in these areas.
    NMFS prepared an EA to determine whether the proposed action had 
the potential to cause significant environmental effects. The EA 
analyzed whether there were significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts. In addition, the EA addressed all 
beneficial and adverse impacts of the proposed action to reach the 
conclusion of no significant impacts. The information and analysis 
contained in the EA demonstrates that Amendment 12 will not 
significantly impact the quality of the human environment. Based on the 
EA, NMFS prepared a FONSI that describes in more detail why NMFS 
determined that the action will not significantly impact the quality of 
the human environment (see ADDRESSES). Based on this FONSI, NMFS 
determined that an EA is the appropriate NEPA analysis for this action 
and preparation of a supplemental EIS is not warranted.
    Comment 36: The consequences of deferring Cook Inlet salmon 
management to the State and of removing the Cook Inlet Area from the 
FMP were not contemplated in the prior EIS and are not properly 
discussed in the current EA.
    Response: NMFS assumes the commenter is referring to the EIS 
prepared in 1978 for the original FMP, because the 2003 EIS prepared 
for the Pacific salmon fisheries management off the coasts of Southeast 
Alaska, Washington, Oregon, and California, and in the Columbia River 
Basin does not apply to salmon fisheries occurring in Cook Inlet.
    The impacts associated with State management of salmon fisheries 
occurring in the net fishing areas were examined in the 1978 EIS. When 
the 1978 EIS was prepared, the State had been managing the salmon 
fisheries in the Cook Inlet Area, Prince William Sound Area, and the 
Alaska Peninsula Area in accordance with the North Pacific Fisheries 
Act of 1954. Federal regulations at 50 CFR 210 set the outside fishing 
boundaries for salmon net fishing in Alaska as those set forth under 
State regulations and provided that any fishing conducted within these 
fishing boundaries shall be conducted under fishing regulations 
promulgated by the State.
    When the Council comprehensively revised the FMP in 1990, the FMP 
continued to broadly define the fishery management unit as the entire 
EEZ, including the net fishing areas. However, the FMP continued to 
recognize Federal law that stated fishing conducted within the net 
fishing areas was governed by the State. The FMP did not explicitly 
delegate management of the salmon fisheries that occur in the net 
fishing areas to the State.
    Federal law mandating State management of the net fishing areas 
changed with the repeal of the North Pacific Fisheries Act of 1954 and 
the enactment of the North Pacific Anadromous Stocks Act of 1992. In 
1995, as a result of this change in Federal law, NMFS repealed the 
fishing boundary regulations at 50 CFR part 210 because they were 
without statutory basis. At that time, the Council and NMFS did not 
amend the FMP to specifically delegate salmon management to the State 
under the FMP; the State continued to manage the salmon fisheries in 
the net fishing areas.
    Amendment 12 clarifies the FMP with respect to fishery management 
in light of these changes to Federal law, and does so in a way that 
does not change how the salmon fisheries occurring in the net fishing 
areas have been managed for decades. Amendment 12 maintains the 
authority and practice of State management of the salmon fisheries 
occurring in these areas. While Amendment 12 modifies the FMP, it does 
not modify the way in which the salmon fisheries within the net fishing 
areas have been managed for many years. The EA analyzes the impacts of 
removing the Cook Inlet Area, the

[[Page 75584]]

Prince William Sound Area, and the Alaska Peninsula Area from the FMP, 
and provides a detailed discussion of salmon management in EA Chapter 4 
and the salmon resources in EA Chapter 5. As explained in the response 
to comment 35, the EA prepared for Amendment 12 thoroughly analyzes the 
impacts of the proposed action on the human environment, including the 
impacts resulting from the removal of the Cook Inlet Area from the FMP.
    Comment 37: The EA fails to discuss the environmental impact of 
removing any requirement for the State to comply with the Magnuson-
Stevens Act.
    Response: NMFS disagrees. EA Chapter 5 analyzes the environmental 
impacts of current salmon fisheries management (status quo) and the 
impacts of the alternatives relative to status quo.
    Comment 38: The Secretary of Commerce (Secretary) should send this 
proposed rule back to the Council and NMFS to properly include the 
three net fishing areas in the FMP. These net fishing areas were 
excluded from the FMP in order to prevent stakeholders in these 
fisheries from exercising Federal review of State management measures 
that discriminate against nonresidents of the State.
    Response: NMFS, under authority delegated to it by the Secretary, 
approved Amendment 12 on June 29, 2012. NMFS determined that Amendment 
12, including its removal of the net fishing areas from the FMP, is 
consistent with the FMP, the provisions of the Magnuson-Stevens Act, 
and other applicable Federal law.
    The Council and NMFS did not remove the net fishing areas from the 
FMP to prevent stakeholders from exercising Federal review of State 
management measures. The Council recommended and NMFS approved removal 
of these areas from the FMP because Federal conservation and management 
is not necessary for the fisheries that occur in these areas. The 
Council's and NMFS' rationale for removing these areas from the FMP is 
explained in detail in EA section 2.5 and is summarized in the response 
to comment 4. The three net areas were excluded from the FMP because 
Federal conservation and management is not necessary for the fisheries 
that occur there. The Council determined that excluding these areas and 
the sport fishery from the FMP allows the State to manage Alaska salmon 
stocks as seamlessly as practicable throughout their range, rather than 
imposing dual State and Federal management.
    The Council meets regularly throughout the year and stakeholders in 
the net fishing areas can present issues to the Council if the need 
arises. Whether the Council chooses to act depends on a number of 
factors, but stakeholders in the net fishing areas can participate in 
the Federal forum of the Council even though the net fishing areas are 
not part of the FMP.
    State management of the commercial fisheries in the Cook Inlet Area 
does not discriminate against residents of other states. Alaska 
residency is not a requirement for holding the limited entry permit 
necessary to participate in the commercial fishery and is not a factor 
in any aspect of the management of the commercial fisheries in Federal 
waters.
    Comment 39: The State's trajectory in Cook Inlet in recent years--
with seven stocks of concern, the extirpation of several sockeye runs, 
and continued reduced returns--points to serious consequences of 
staying the course under State management. Not only are these concerns 
not properly addressed in the EA, but individually and collectively 
they raise substantial questions as to whether Amendment 12 will have 
significant environmental effects thereby warranting preparation of a 
full EIS.
    Response: The conclusions in the comment concerning adverse impacts 
to Cook Inlet salmon stocks due to State management are not supported 
by available information. The EA section 5.1 analyzes the best 
available information on Cook Inlet salmon stocks. As shown in section 
5.1, salmon abundance fluctuates dramatically between years. Exact 
causes for poor salmon returns are unknown, but may involve a variety 
of factors outside the control of fishery managers to mitigate, 
including unfavorable ocean conditions, freshwater environmental 
factors, disease, or other likely factors on which data are limited or 
nonexistent. The ocean and freshwater environments are changing, and 
the impacts of those changes on salmon abundance are difficult to 
forecast because they, in turn, depend on somewhat uncertain forecasts 
of global climate. Therefore, NMFS concludes that State salmon 
management does not cause low salmon returns.
    Because the Council and NMFS determined that the State is 
adequately managing salmon stocks consistent with the policies and 
standards of the Magnuson-Stevens Act, the Council and NMFS determined 
that Amendment 12 will not significantly impact the quality of the 
human environment. In addition, the EA addressed all beneficial and 
adverse impacts of the proposed action to reach the finding of no 
significant impacts. Based on the EA, NMFS prepared a FONSI that 
describes in more detail why NMFS determined that the action will not 
significantly impact the quality of the human environment (see 
ADDRESSES). Based on this FONSI, an EA is the appropriate NEPA analysis 
for this action and preparation of an EIS is not warranted.
    Comment 40: The EA fails to demonstrate any economic impacts or 
impacts to the fishery resource that have been occurring under State 
management and that are likely to continue or get worse in light of 
Amendment 12. The economic losses associated with the decline in 
Chinook, sockeye, chum, and pink harvests are in the hundreds of 
millions of dollars over the past half century. This type of economic 
analysis was glossed over by the rush to revise the Salmon FMP with 
Amendment 12.
    Response: EA Chapter 4 provides detailed information and analysis 
of the economic impacts that have been occurring under State management 
and that are likely to continue under Amendment 12. The information and 
analysis represents the best economic information available. The 
conclusions in the comment about economic losses are not supported by 
the available information. See response to comment 23.
    Comment 41: All the stakeholders testified that they wished to 
retain Federal oversight and remain under the FMP. Currently, the Cook 
Inlet stakeholders face pressures on their fishery that are not 
encountered in other areas of Alaska. Urbanization of the Cook Inlet 
basin and State regulations that permit resident-only dipnet fishing 
threaten the economic viability of the commercial fishery. Listing of 
the Cook Inlet beluga whale will have unknown consequences on the 
fishery. Also, Federal subsistence users in Cook Inlet rely on salmon 
for subsistence needs. Removing the Cook Inlet Area from the FMP will 
leave the stakeholders without a voice during interagency consultation 
regarding State management, habitat preservation, endangered species 
interactions, and subsistence needs.
    Response: The Council and NMFS considered the public testimony 
received on Amendment 12, including testimony from Cook Inlet 
commercial salmon fishermen asking that the Cook Inlet Area remain in 
the FMP and that the Council and NMFS provide oversight of State 
management of salmon fisheries in Cook Inlet. As explained in the 
responses to comments 6 and 54, the Council and NMFS cannot adopt an 
FMP that only imposes Federal fishery management oversight over 
fisheries occurring in an area but that

[[Page 75585]]

does not include provisions that address all of the measures for 
fishery management plans required by the Magnuson-Stevens Act. The 
Council and NMFS explained that the limited type of oversight expressed 
in public comment is not possible under the Magnuson-Stevens Act.
    Removal of the Cook Inlet Area from the FMP does not limit the 
public's ability to participate in NMFS' management of ESA-listed 
species and designated critical habitat, or the U.S. Fish and Wildlife 
Service's management of subsistence fisheries on Federal lands. The ESA 
and Federal laws administered by the U.S. Fish and Wildlife Service 
contain specific provisions for public participation that the FMP need 
not duplicate. See the response to comment 26.
    Additionally, as explained in the response to comments 4 and 23, 
NMFS has limited ability to change any actions taken by the State 
within State waters.
    Comment 42: The EA unreasonably fails to consider the alternative 
of treating Cook Inlet differently from other parts of the West Area. 
The EA rejects that alternative because there is no distinction between 
these areas relative to the National Standards and the criteria for 
determining where Federal conservation and management are required. 
This statement could not be further from the truth. Cook Inlet is 
different, and here are some of the ways:
     Some of the nation's largest wild runs of Chinook, 
sockeye, coho, pink, chum, and steelhead salmon return through the EEZ 
portion of Cook Inlet.
     Two-thirds of the State's population lives in the Cook 
Inlet area, creating habitat and resource competition issues unique in 
Alaska.
     NMFS has identified Cook Inlet as a priority for habitat 
issues in its Habitat Blueprint strategy.
     There are seven stocks of concern in Cook Inlet (versus 
none in the other two net fishing areas in the West Area).
     Total harvests in Cook Inlet have steadily declined in 
recent years, unlike other areas in Alaska.
     The EEZ portion of Cook Inlet is an ideal fishing location 
(it is the preferred location of the drift fleet) where significant 
portions of the run can be harvested and is an ideal target for 
unregulated fishing by out-of-state vessels.
     The EEZ portion of Cook Inlet is essential to properly 
managing the sockeye fishery to provide an orderly fishery and prevent 
over escapement.
    None of these factors are necessarily present in the other EEZ 
fisheries in the West Area. In light of these clear differences, it was 
arbitrary for the EA to not consider an alternative that treats Cook 
Inlet differently.
    Response: The Council considered whether to manage the three areas 
separately but found that there is no distinction between these areas 
relative to the National Standards and the criteria for determining 
where Federal conservation and management are required. The Council 
recognized that Cook Inlet is different from Prince William Sound and 
the Alaska Peninsula, as described in the EA. However, none of the 
differences highlighted in the comment or in the EA changes whether the 
areas require management under a fishery management plan. The primary 
factor in the Council's decision to address these three areas together 
was that the salmon fisheries in each area are managed by the State's 
salmon management program.
    Comment 43: The petition process in the FMP is inadequate and makes 
no provisions for when (1) A third party proposes, and the Board adopts 
a proposal that is adverse; (2) the Board generates and adopts its own 
proposal, (3) the Board makes emergency or out of cycle changes 
impacting the fishery; or (4) ADF&G makes emergency in season changes.
    Response: Section 9.3 of the FMP, as amended by Amendment 12, 
provides a member of the public with an opportunity to petition NMFS to 
conduct a consistency review of any State management measure that 
applies to salmon fishing in the East Area if that person believes the 
management measure is inconsistent with the provisions of the FMP, the 
Magnuson-Stevens Act, or other applicable federal law. Prior to 
submitting a petition requesting a consistency review to NMFS, section 
9.3 requires a person to exhaust available administrative regulatory 
procedures with the State. Section 9.3 provides two ways in which 
persons can demonstrate exhaustion of State administrative regulatory 
procedures. First, NMFS will conclude that a person has exhausted 
available State administrative regulatory procedures if the person can 
demonstrate that he or she: (1) submitted one or more proposals for 
regulatory changes to the Board during a Call of Proposals consistent 
with 5 Alaska Administrative Code (AAC) 96.610, and (2) received an 
adverse decision from the Board on the proposal(s). Second, section 9.3 
recognizes that there could be circumstances that may require 
regulatory changes outside the regular process set forth in 5 AAC 
96.610, or circumstances when the process set forth in 5 AAC 96.610 is 
unavailable due to the timing of the action requested. Under these 
unusual circumstances, NMFS will conclude that a person has exhausted 
State administrative regulatory procedures if the person can 
demonstrate that he or she: (1) Could not have followed the regular 
Call of Proposals requirements at 5 AAC 96.610, (2) submitted an 
emergency petition to the Board or ADF&G consistent with 5 AAC 96.625 
or submitted an agenda change request to the Board consistent with 5 
AAC 39.999, and (3) received an adverse decision from the Board or 
ADF&G on the emergency petition or agenda change request.
    The commenter appears to be concerned that a person would be unable 
to demonstrate exhaustion of State administrative regulatory 
procedures, and therefore unable to obtain NMFS review of his or her 
petition, even when the situations highlighted in the comment have 
occurred. However, these situations appear to be covered by the second 
method of exhaustion when unusual circumstances, such as the ones 
highlighted in the comment, have occurred.
    The FMP requires exhaustion of available State administrative 
regulatory procedures before petitioning NMFS for a consistency review 
for several reasons. The Council and NMFS delegated regulation of the 
commercial and sport salmon fisheries in the East Area to the State in 
recognition of its expertise, and because the State is in the best 
position to consider challenges and make changes to its management 
measures. The Council and NMFS also recognize the importance of public 
participation during the development of State fishery management 
measures, and exhaustion encourages the public to actively participate 
in and try to effectuate fishery management change through the State 
process. Finally, by requiring a person to exhaust the State's 
administrative regulatory procedures before petitioning NMFS, the State 
is presented with an opportunity to hear the challenge and take 
corrective action if the State finds merit in the challenge before 
federal resources are expended. The Council and NMFS have determined 
that the petition process set forth in Chapter 9 of the FMP, as 
amended, is adequate and addresses the situations raised by the 
commenter.
    Comment 44: The Council did not consider whether Federal loan and 
grant funds will remain available for investment in the Cook Inlet 
salmon industry, habitat restoration, and if necessary, failed run 
disaster assistance.

[[Page 75586]]

    Response: The geographic scope of the FMP has no effect on the 
availability of Federal loans and grant funds for Cook Inlet salmon 
fishery participants, habitat restoration, or assistance in the case of 
a commercial fishery failure due to a natural resource disaster. 
Therefore, the Council did not need to consider the availability of 
funding in the areas identified by the commenter when it determined the 
appropriate scope of the FMP.
    Several recent examples demonstrate the lack of any connection 
between the availability of Federal loans and grant funds and the 
Council and NMFS' decision to remove the Cook Inlet Area from the FMP. 
NMFS is implementing a buyback program for the participants in the 
Southeast Alaska purse seine salmon fishery, which includes a fishing 
capacity reduction loan of approximately $23.5 million to finance the 
purchase of State limited entry permits. This fishery occurs within 
State waters and is not managed by the FMP. NMFS' administration of 
this program is irrespective of the scope of the FMP. For more 
information on this program, please see NMFS Financial Services' Web 
site at https://www.nmfs.noaa.gov/mb/financial_services/southeast_alaska_purse_seine_salmon_buyback.html.
    Additionally, under the Magnuson-Stevens Act, at 16 U.S.C. 
1861a(a), the Secretary can determine a commercial fishery failure due 
to a fishery resource disaster for any commercial fishery regardless of 
whether the fishery occurs in Federal waters or is managed under a 
Federal fishery management plan. For example, in 2010 the Secretary 
determined that a commercial fishery failure due to a fishery resource 
disaster occurred for the Yukon River Chinook salmon fishery in 2008 
and 2009. This fishery is managed by the State and is not under a 
Federal fishery management plan. In the summer of 2012, Alaska State 
Governor Sean Parnell requested that the Secretary determine a 
commercial fishery failure due to a fishery resource disaster for the 
Chinook salmon fisheries on the Yukon and Kuskokwim rivers and in Cook 
Inlet. The Secretary's review of this request, and the supporting 
information provided by the State, and the Secretary's subsequent 
determination, were irrespective of a Federal fishery management plan.
    Comment 45: We support the revised regulations at Sec.  679.7(h) to 
prohibit commercial fishing for salmon using any gear except troll gear 
in the East Area as it is consistent with State regulations.
    Response: NMFS acknowledges the comment.
    Comment 46: Unfairly limiting Alaska salmon trolling permits to 
fish only from the Canadian border to Cape Suckling is a political move 
initiated and perpetuated in the special interest of other gear groups. 
Trollers are small operations that are efficient at targeting specific 
species, unlike the vessels that are now allowed to operate west of 
Cape Suckling that have large bycatch wastage, decimating prime 
fisheries. Allowing smaller salmon troll vessels in State waters would 
create jobs, encourage small business, and efficiently use existing 
salmon resources.
    Response: To the extent the commenter is referring to fishing for 
salmon with troll gear in the West Area, such fishing has been 
prohibited since 1973 under State management. The FMP has prohibited 
commercial fishing with all gear types in the West Area since 1979, and 
the Council continued this prohibition with Amendment 12. The Council 
and NMFS' rationale for continuing this prohibition is provided in EA 
section 2.5. To the extent the commenter is referring to fishing for 
salmon with troll gear in State waters, the Council and NMFS do not 
have the authority to open or close State waters to troll vessels. The 
commenter should direct this comment to the State, which has the 
authority to open or close State waters to troll vessels.
    Comment 47: The State is doing little or nothing to address the 
introduction and spread of northern pike, a harmful invasive species, 
in Cook Inlet. The EA fails to discuss the critical problems related to 
northern pike in Cook Inlet. Given the State's failure to take action, 
further northern pike infestations are reasonably likely as a result of 
the Council's action.
    Response: NMFS disagrees with the commenter's conclusion that the 
State is doing little to nothing to address the introduction and spread 
of northern pike in Cook Inlet. NMFS has no authority under the 
Magnuson-Stevens Act to manage northern pike in Alaska lakes under a 
Federal fishery management plan. The State has extensive projects and 
partnerships to control and eradicate northern pike in Southcentral 
Alaska. In 2007, ADF&G developed the Alaska Northern Pike Management 
Plan and identified northern pike as the highest invasive species 
threat in Southcentral Alaska. In the past five years, the State has 
eliminated northern pike populations from four lakes systems in 
Southcentral Alaska, and has initiated large-scale control efforts in 
Alexander Creek, a tributary of the Susitna River, where a reduction in 
salmon abundance has been observed. ADF&G plans to continue to 
investigate options to control or eradicate northern pike in lake and 
river systems that support valuable commercial, subsistence, and sport 
fisheries in the Cook Inlet watershed, and to implement options as 
feasible.
    The State's past and ongoing efforts to eradicate or control 
northern pike in Southcentral Alaska are not connected to the FMP or 
the Council's and NMFS' action on Amendment 12, because the FMP was and 
is not the catalyst for the State's efforts. However, NMFS has added an 
analysis of the northern pike control and eradication projects to the 
cumulative effects analysis in EA section 5.7.6 because ADF&G's 
projects and partnerships to control and eradicate northern pike are a 
reasonably foreseeable future action that will mitigate the negative 
impacts of pike predation on salmon abundance in freshwater lakes and 
rivers. The analysis indicates that these actions will reduce the 
potential for pike to move into estuarine waters of Cook Inlet.

Classification

    Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, 
the NMFS Assistant Administrator has determined that Amendments 10, 11, 
and 12 and this final rule are consistent with the FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration at the proposed stage that this final rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The Factual Basis for Certification was provided in the 
Classification section of the preamble to the proposed rule (77 FR 
21716, April 11, 2012). NMFS received no comments on the Factual Basis 
for Certification.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.


[[Page 75587]]


    Dated: December 17, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the Functions and 
Duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, NMFS amends 50 CFR part 
679 as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq., 3631 et seq., 
and Pub. L. 108-447.


0
2. In Sec.  679.1, revise paragraph (i) to read as follows:


Sec.  679.1  Purpose and scope.

* * * * *
    (i) Fishery Management Plan for the Salmon Fisheries in the EEZ Off 
Alaska (Salmon FMP)--(1) Regulations in this part govern commercial 
fishing for salmon by fishing vessels of the United States in the West 
Area of the Salmon Management Area.
    (2) State of Alaska laws and regulations that are consistent with 
the Salmon FMP and with the regulations in this part apply to vessels 
of the United States that are commercial and sport fishing for salmon 
in the East Area of the Salmon Management Area.
* * * * *

0
3. In Sec.  679.2, revise the definition for ``Salmon Management Area'' 
to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Salmon Management Area means those waters of the EEZ off Alaska 
(see Figure 23 to part 679) under the authority of the Salmon FMP. The 
Salmon Management Area is divided into a West Area and an East Area 
with the border between the two at the longitude of Cape Suckling 
(143[deg] 53.6' W):
    (1) The East Area means the area of the EEZ in the Gulf of Alaska 
east of the longitude of Cape Suckling (143[deg] 53.6' W).
    (2) The West Area means the area of the EEZ off Alaska in the 
Bering Sea, Chukchi Sea, Beaufort Sea, and the Gulf of Alaska west of 
the longitude of Cape Suckling (143[deg] 53.6' W) but excludes the Cook 
Inlet Area, the Prince William Sound Area, and the Alaska Peninsula 
Area, shown in Figure 23 and described as:
    (i) the Cook Inlet Area which means the EEZ waters north of a line 
at 59[deg] 46.15' N;
    (ii) the Prince William Sound Area which means the EEZ waters 
shoreward of a line that starts at 60[deg] 16.8' N and 146[deg] 15.24' 
W and extends southeast to 59[deg] 42.66' N and 144[deg] 36.20' W and a 
line that starts at 59[deg] 43.28' N and 144[deg] 31.50' W and extends 
northeast to 59[deg] 56.4' N and 143[deg] 53.6' W.
    (iii) the Alaska Peninsula Area which means the EEZ waters 
shoreward of a line at 54[deg] 22.5' N from 164[deg] 27.1' W to 
163[deg] 1.2' W and a line at 162[deg] 24.05' W from 54[deg] 30.1' N to 
54[deg] 27.75' N.
* * * * *

0
4. In Sec.  679.3, revise paragraph (f) to read as follows:


Sec.  679.3  Relation to other laws.

* * * * *
    (f) Domestic fishing for salmon. Management of the salmon 
commercial troll fishery and sport fishery in the East Area of the 
Salmon Management Area, defined at Sec.  679.2, is delegated to the 
State of Alaska.
* * * * *


Sec.  679.4  [Amended]

0
5. In Sec.  679.4, remove and reserve paragraphs (a)(1)(v) and (h).

0
6. In Sec.  679.7, revise paragraph (h) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (h) Salmon fisheries. (1) Engage in commercial fishing for salmon 
using any gear except troll gear, defined at Sec.  679.2, in the East 
Area of the Salmon Management Area, defined at Sec.  679.2 and Figure 
23 to this part.
    (2) Engage in commercial fishing for salmon in the West Area of the 
Salmon Management Area, defined at Sec.  679.2 and Figure 23 to this 
part.
* * * * *

0
7. Revise Figure 23 to part 679 to read as follows:
BILLING CODE 3510-22-P

[[Page 75588]]

[GRAPHIC] [TIFF OMITTED] TR21DE12.003

[FR Doc. 2012-30839 Filed 12-20-12; 8:45 am]
BILLING CODE 3510-22-C