[Federal Register Volume 70, Number 47 (Friday, March 11, 2005)]
[Notices]
[Pages 12194-12203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4839]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 030105B]


Endangered and Threatened Species; Take of Anadromous Fish

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

ACTION: Notice of final determination and discussion of underlying 
biological analysis.

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SUMMARY: NMFS has evaluated the joint resource management plan (RMP) 
for harvest of Puget Sound chinook salmon provided by the Puget Sound 
Treaty Tribes and the Washington Department of Fish and Wildlife (WDFW) 
pursuant to the protective regulations promulgated for Puget Sound 
chinook salmon under the Endangered Species Act (ESA). The RMP 
specifies the management of commercial, recreational and tribal salmon 
fisheries and steelhead net fisheries that potentially affect listed 
Puget Sound chinook salmon from May 1, 2004, through April 30, 2010.
    The co-managers propose that the resource management plan be in 
effect for six years, from May 1, 2004, through April 30, 2010. 
However, a biological opinion issued by NMFS on June 10, 2004, titled 
``Effects of Programs Administered by the Bureau of Indian Affairs 
supporting tribal salmon fisheries management in Puget Sound and Puget 
Sound salmon fishing activities authorized by the U.S. Fish and 
Wildlife Services during the 2004 fishing season'', is effective 
through April 30, 2005. Therefore, NMFS' evaluation and determination 
under the ESA 4(d) rule will only address May 1, 2005 to April 30, 
2010, of the proposed duration of the RMP. This document serves to 
notify the public that NMFS, by delegated authority from the Secretary 
of Commerce (Secretary), has determined pursuant to the Tribal Rule and 
the government-to-government processes therein that implementing and 
enforcing the RMP from May 1, 2005, to April 30, 2010, will not 
appreciably reduce the likelihood of survival and recovery of the Puget 
Sound chinook salmon Evolutionarily Significant Unit (ESU).

DATES: The final determination on the take limit was made on February 
28, 2005.

ADDRESSES: Sustainable Fisheries Division, National Marine Fisheries

[[Page 12195]]

Service, 7600 Sand Point Way NE, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Susan Bishop at: 206/526-4587, or e-
mail: [email protected] regarding the RMP.

SUPPLEMENTARY INFORMATION: This notice is relevant to the Puget Sound 
chinook salmon (Oncorhynchus tshawytscha) ESU.

Electronic Access

    The full texts of NMFS' determination and the final Evaluation are 
available on the Internet at the NMFS, Sustainable Fisheries Division 
web site at: http://www.nwr.noaa.gov/1sustfsh/limit6/index.html.

Background

    In March, 2004, the Puget Sound Treaty Tribes and the WDFW (co-
managers) provided a jointly developed RMP that encompasses Strait of 
Juan de Fuca and Puget Sound salmon fisheries affecting the Puget Sound 
chinook salmon ESU. The RMP is effective from May 1, 2004, through 
April 30, 2010. Harvest objectives specified in the RMP account for 
fisheries-related mortality of Puget Sound chinook throughout its 
migratory range, from Oregon and Washington to Alaska. The RMP also 
includes implementation, monitoring and evaluation procedures designed 
to ensure fisheries are consistent with these objectives. On April 15, 
2004, at 69 FR 19975, NMFS published a notice of availability for 
public review and comment in the Federal Register, on its evaluation of 
how the Puget Sound chinook RMP addressed the criteria in section 
223.203 (b)(4) of the ESA 4 (d) rule (65 FR 42422).
    As required by section 223.203 (b)(6) of the ESA 4 (d) rule, NMFS 
must determine pursuant to 50 CFR 223.209 and pursuant to the 
government to government processes therein whether the RMP for Puget 
Sound chinook would appreciably reduce the likelihood of survival and 
recovery of the Puget Sound chinook and other affected threatened ESUs. 
NMFS must take comments on how the RMP addresses the criteria in 
section 223.203 (b)(4) in making that determination.

Discussion of the Biological Analysis Underlying the Determination

    The RMP's approach to establishing management objectives is risk 
averse and progressive, including (1) management objectives, based on 
natural production and natural spawning, have been established for the 
majority of naturally producing populations which historically had 
self-sustaining chinook populations and for which data is available. 
These management units represent the entire range of life history types 
(races) and geographic distribution that comprise the Puget Sound 
chinook salmon ESU; (2) the RMP derives exploitation rates based on 
conservative, quantifiable standards directly related to recovery, 
which take into account scientific uncertainty; (3) in isolating the 
effect of harvest on survival and recovery, the approach is valuable in 
ensuring that harvest actions do not impede recovery, regardless of the 
contribution of the hatcheries, habitat, hydropower.. At the same time, 
the approach is linked to the other hatcheries, habitat, hydropower by 
taking into account current environmental and habitat conditions; (4) 
the proposed objectives are generally consistent with NMFS' rebuilding 
exploitation rates (RER), population standards previously used to 
assess the likelihood of survival and recovery of the Puget Sound 
chinook salmon ESU. These standards included an assessment of the long-
term effects of exploitation rates at these levels; (5) the RMP 
includes specific and integrated monitoring programs to maintain and 
improve population assessment methodologies as well as to evaluate the 
effectiveness of harvest management actions and objectives. The RMP 
also includes provisions for an annual report. This report will assess 
compliance with, parameter validation of, and effectiveness of the RMP 
objectives.
    A more detailed discussion of NMFS' evaluation is on the 
Sustainable Fisheries Division web site (see Electronic Access, under 
the heading, SUPPLEMENTARY INFORMATION).

Summary of Comments Received in Response to the Proposed Evaluation and 
Pending Determination

    NMFS published a notice in the Federal Register announcing the 
availability of its Proposed Evaluation and Pending Determination 
(PEPD) on the RMP for public review and comment on April 15, 2004 (69 
FR 19975). The comment period closed on May 17, 2004. Three commenters 
provided comments to NMFS on the PEPD during this public comment 
period. NMFS has reviewed the comments received and discussed the 
substantive issues with the co-managers. Several of the comments were 
addressed and reflected in NMFS' final Evaluation and Recommended 
Determination (ERD). The co-managers made no modifications to the RMP 
based on public comments received on NMFS' PEPD.
    Comments received from the public in response to the NMFS 
announcement of the PEPD for review are summarized as follows:
    On Tuesday, May11, 2004, NMFS received e-mail comments from Mr. 
Robert Hayman of the Skagit River System Cooperative. The comments were 
submitted in the form of electronic versions of three documents: 
``NMFSFinalE&DComments504.doc''; ``BYExplRateCalcs2004 PopStatFix 
404.xls''; and ``SkgtSFCkProjectn4E&D404.xls''. Under the 
implementation of the RMP, the projected range of exploitation rates 
for the Skagit summer/fall chinook salmon management unit was estimated 
to be 48 to 56 percent (Table 3 in the PEPD). The PEPD qualified this 
projection by stating that this range of exploitation rates probably 
overestimates the actual rates under the RMP. Mr. Hayman agreed with 
this assessment and requested that his three documents be included as 
part of the public record on the PEPD ``so that they are available if 
further elaboration is needed about the Evaluation and Determination's 
assessment of Skagit summer/fall chinook.'' No change to the PEPD was 
necessary.
    On Tuesday, May11, 2004, NMFS received comments from Mr. Sam 
Wright. Mr. Wright commented that the Final Environmental Impact 
Statement (FEIS) should be completed prior to soliciting public review 
comments on the PEPD. Mr. Wright's comments were primarily directed at 
the Draft Environmental Impact Statement (DEIS). The comments addressed 
the alternatives of the DEIS and proposed an additional alternative, 
which he referred to as Alternative 1A. He asked that these comments on 
the DEIS be incorporated by reference. Mr. Wright provided no other 
direct comments on the PEPD. The discussion on the various alternatives 
is not directly applicable to the PEPD. Mr. Wright's comments 
pertaining to the DEIS were addressed in the FEIS process.
    On Monday, May 17, 2004, through e-mail, NMFS received comments on 
the PEPD from the Washington Trout (WT). The commenter recommends that 
NMFS substantively revise the PEPD before a final determination is 
developed. The structure of the WT's comments was presented in nine 
identified sections. These sections were: Introduction; Minimum Fishery 
Regime; Management Objectives and Indicators; Recovery Exploitation 
Rates; Upper Management Thresholds; Low Abundance Thresholds; Critical 
Exploitation Rate Ceiling; Critical Exploitation Rate Ceiling; and 
Other Issues of Concern. In responding to the WT's comments, NMFS will 
use a similar structure.

[[Page 12196]]

Response to Comments

Introduction Comments

    Comment 1: In the introduction section, the commenter requested 
that the PEPD: (1) provide a detailed explanation of key terms and 
concepts employed in the RMP. The commenter stated that the PEPD 
employs important legalistic and technical-biological terms and 
concepts without ever attempting to explain them; (2) provide a 
detailed and critical description and assessment of the key assumptions 
made by the RMP; (3) clearly describe and characterize the several 
kinds of risk that the harvest regime may pose to populations of the 
listed Evolutionarily Significant Unit (ESU) and to the ESU as a whole; 
(4) characterize relevant and critical uncertainties with methods used 
in the PEPD; (5) evaluate whether the proposed fishery regime(s) 
is(are) described in sufficient detail to permit a clear assessment of 
the extent to which the regime is risk-averse to potential impacts on 
populations of the listed ESU; (6) clearly describe and explain the 
extent to which the proposed harvest regime is risk-averse to harmful 
impacts on individual populations of the listed ESU and the ESU as a 
whole; and, (7) require the RMP to employ clearly articulated impact-
threshold targets to be attained (or to be avoided), with clearly 
articulated management actions that will be taken in response when 
critical thresholds are not attained (or not avoided), and clear time 
frames for taking corrective actions and for achieving the desired 
targets of the corrective actions.
    Response: NMFS found these comments too general in nature and 
lacking necessary specifics to properly respond. NMFS assumes, given 
that that these comments were in the ``introduction'' section, that 
many of these comments will be addressed by responding to the more 
specific comments that followed in other sections. For a general 
response, as required in section (b)(6)(iii) of the Endangered Species 
Act of 1973 (ESA) section 4(d) rule for listed Puget Sound chinook 
salmon (referred hereafter as the ESA 4(d) rule), the RMP, in NMFS' 
opinion, must adequately address eleven criteria under section 
(b)(4)(i) in Limit 4. The criteria under Limit 4 section (b)(4)(i) are 
summarized in Table 1, page 3 of the PEPD. Compliance with these 
criteria does not necessarily require the most conservative response. 
The RMP proposes implementation of restrictions to the fishery-related 
mortality to each Puget Sound chinook salmon population or management 
unit. The RMP's restrictions to the cumulative fishery-related 
mortality are expressed as: (1) a rebuilding exploitation rate; (2) an 
upper management threshold; (3) a low abundance threshold; and (4) a 
critical exploitation rate ceiling (Table 2 of the PEPD). For select 
management units, Appendix A: Management Unit Status Profiles of the 
RMP describes how these thresholds or exploitation rate limits were 
derived. NMFS did not necessarily evaluate the RMP's definition of 
terms or the assumptions the co-managers used in developing the RMP's 
mortality limits. In the PEPD, NMFS compared the proposed RMP's 
mortality limits, regardless of their basis, to the NMFS-derived 
critical and viable threshold standards. NMFS used the best data 
available to estimate these critical and viable thresholds for each 
population. The PEPD also evaluated the effects of implementing the 
RMP's mortality limits. The co-managers, in cooperation with NMFS, 
modeled the anticipated impacts of implementing the proposed RMP's 
mortality limits. The modeling used risk-averse assumptions in 
determining potential impacts and the resultant escapement. The 
modeling assumed the fishing regime under the RMP would closely 
resemble that planned for 2003, and modeled those fishing regulations 
for the southern United States (SUS). The modeling also assumed a range 
of intercepting fisheries to include the highest Canadian harvest 
allowed under the 1999 Pacific Salmon Treaty (PST) agreement, as well 
as those in 2003. The modeled range of Puget Sound chinook salmon 
abundance was bounded by the 2003 forecast abundance and a 30 percent 
reduction from that level for all populations. The anticipated results 
of implementing the RMP were compared against the criteria outlined 
under Limit 6 of the ESA 4(d) rule. NMFS' approach in its evaluation is 
conservative, and takes into consideration the uncertainty of the data. 
Through its evaluation of the RMP, NMFS Northwest Region's Sustainable 
Fisheries Division concluded that the RMP adequately addressed all the 
criteria outlined in the ESA 4(d) Rule, including implementing and 
enforcing the RMP, and would not appreciably reduce the likelihood of 
survival and recovery of the Puget Sound Chinook Salmon ESU. 
Information provided in the PEPD, along with the information included 
and available by reference, provides the reviewer the information 
necessary to evaluate NMFS' risk criteria used to reach this 
conclusion.
    Comment 2: The commenter expressed concern regarding the PEPD's 
conclusion that the RMP ``would not appreciably reduce the likelihood 
of survival and recovery of the Puget Sound Chinook Salmon ESU.'' The 
commenter believes that this finding reflects an opaque standard, open 
to any number of subjective interpretations, including the most 
minimal.
    Response: This language in question in the PEPD is taken directly 
from section (b)(6)(i) of the ESA 4(d) rule. The ESA 4(d) rule states 
that ``...the [take] prohibitions of paragraph (a) of this section 
relating to threatened species of salmonids ....... do not apply to 
actions undertaken in compliance with a resource management plan 
......... provided that: (i) The Secretary has determined .......... 
that implementing and enforcing the joint tribal/state plan will not 
appreciably reduce the likelihood of survival and recovery of affected 
threatened ESUs'' (50 CFR. 223.203(b)(6)). Some of the criteria 
outlined in the ESA 4(d) rule require NMFS to evaluate the RMP's 
impacts on individual populations. One of the criteria for Limit 6 of 
the ESA 4(d) rule is that harvest actions that impact populations at or 
above their viable thresholds must maintain the population or 
management unit at or above that level. Overall, along with other on-
going habitat and hatchery programs, the results of harvest actions 
since the ESA listing of the Puget Sound Chinook Salmon ESU appear to 
be maintaining these populations above the viable threshold levels as 
required by the ESA 4(d) rule. Another criterion for Limit 6 of the ESA 
4(d) rule is that fishing-related mortality on populations above 
critical levels, but not at viable levels (as demonstrated with a high 
degree of confidence), must not appreciably slow achievement to viable 
function. The criterion for populations at or below their critical 
thresholds is that fishing-related mortality on the population must not 
appreciably increase genetic and demographic risks facing the 
population, and does not preclude achievement of viable functions, 
unless the RMP demonstrates the likelihood of survival and recovery of 
the entire ESU in the wild would not be appreciably reduced by greater 
risks to an individual population. Only one population in the ESU, the 
North Fork Nooksack River population, is considered to be below its 
critical threshold (see Table 9 of the PEPD). For the North Fork 
Nooksack River population, NMFS concludes that the risk to the 
population will remain within acceptable limits as a result of

[[Page 12197]]

the implementation of the RMP, as required by the ESA 4(d) Rule, for a 
population below their critical level. However, the ESU, not the 
individual populations within the ESU, is the listed entity under the 
ESA. Through its evaluation of the RMP, NMFS Northwest Region's 
Sustainable Fisheries Division concluded that the RMP would not 
appreciably reduce the likelihood of survival and recovery of the Puget 
Sound Chinook Salmon ESU.

Minimum Fishery Regime Comments

    Comment 3: The commenter believes that the PEPD introduces factors 
that appear to be extra-biological mitigation for various and specific 
anticipated risks to the ESU imposed by the RMP, including what appears 
to be consideration of the need for a fair distribution of the burden 
of conservation. The commenter suggests that the relationship of the 
RMP to Canadian and Alaskan fisheries appears to be NMFS' most explicit 
attempt in the PEPD to distribute the conservation burden fairly.
    Response: As required in section (b)(6)(iii) of the ESA 4(d) rule, 
the RMP must adequately address 11 criteria under section (b)(4)(i) in 
Limit 4. How the conservation burden was distributed among the various 
sections is not one of the 11 criteria used to evaluate the RMP under 
the ESA 4(d) rule. However, to provide the reviewer a better 
understanding of the RMP, the PEPD did present the co-managers' 
perspective on certain aspects of the RMP. From the co-managers' 
perspective, the Minimum Fishery Regime proposed in the RMP addresses 
conservation concerns ``while still allowing a reasonable harvest of 
non-listed salmon'' (page 17 of the RMP). The PEPD (page 5) incorrectly 
alludes that it is the co-managers' perspective that the RMP represents 
a fair distribution of the burden of conservation. Reference to the co-
manager's perspective that the RMP represents a fair distribution of 
the burden of conservation was removed from the ERD. However, NMFS did 
not evaluate the co-managers' perspective of the minimum fisheries 
regime. NMFS evaluated the effects of the proposed action, in this case 
the implementation of Puget Sound fisheries under the abundance and 
non-SUS fisheries anticipated in the next five years. In evaluating the 
effects of the action, Canadian impacts are considered in the baseline.
    Comment 4: The commenter believes that the recognition of tribal 
treaty rights would mandate the acceptance of a base level of fisheries 
that must always be allowed, under any circumstance. It was of concern 
to the commenter that the RMP would propose that there was no 
conceivable circumstance potentially faced by the ESU that would 
warrant the complete restriction of fishery impacts on an individual 
management unit.
    Response: NMFS evaluated the RMP based on what is likely to occur 
over the next five fishing seasons, May 1, 2005, to April 30, 2010, the 
remaining duration of the RMP. To approve the RMP under the ESA 4(d) 
rule, NMFS must conclude that the RMP adequately address the criteria 
outlined in the ESA 4(d) rule, including the criterion that 
implementing the RMP will not appreciably reduce the likelihood of 
survival and recovery of the Evolutionarily Significant Unit in the 
wild, over the entire period of time the proposed harvest management 
strategy affects the population. Compliance with these criteria does 
not necessarily require the most conservative response. In the PEPD, 
the anticipated results of implementing the RMP were compared against 
the criteria outlined under Limit 6 of the ESA 4(d) rule. Through its 
evaluation of the RMP, NMFS Northwest Region's Sustainable Fisheries 
Division concluded that the RMP adequately addressed all the criteria 
outlined in the ESA 4(d) rule, including implementation and that 
enforcing the RMP would not appreciably reduce the likelihood of 
survival and recovery of the Puget Sound Chinook Salmon ESU. The 
``complete restriction of fishery impacts on an individual management 
unit'' was not necessary to meet the criteria outlined under Limit 6 of 
the ESA 4(d) rule. If impacts under the implementation of the RMP are 
greater than expected, NMFS can withdraw the ESA 4(d) Rule 
determination or ask the co-managers to adjust fisheries to reduce 
impacts.
    In recognition of tribal management authority and the Federal 
Government's trust responsibility to the tribes, NMFS is committed to 
considering their judgment and expertise regarding the conservation of 
trust resources. Consistent with this commitment and as a matter of 
policy, NMFS has sought, where there is appropriate tribal management, 
to work with tribal managers to provide limited tribal fishery 
opportunities, so long as the risk to the population remains within 
acceptable limits.
    Comment 5: The commenter suggests that the minimum fisheries regime 
proposed in the RMP will not result in significant reductions in either 
the total exploitation impacts experienced by management units, or the 
Southern United States (SUS) or pre-terminal SUS exploitation rates. 
The commenter believes that this inadequacy conflicts with the RMP's 
characterization of the minimum fisheries regime as ``extraordinary 
fisheries conservation measures'' designed to ``minimize'' impacts on 
management units from fisheries.
    Response: NMFS did not evaluate the RMP's characterization of the 
minimum fisheries regime. The anticipated results of implementing the 
RMP, not the RMP's characterization of the minimum fisheries regime, 
were compared against the criteria outlined under Limit 6 of the ESA 
4(d) rule. Compliance with these criteria does not necessarily require 
the most conservative response. The RMP proposes implementation of 
restrictions to the fishery-related mortality to each Puget Sound 
chinook salmon population or management unit. The RMP's limits to the 
cumulative fishery-related mortality are expressed as: (1) a rebuilding 
exploitation rate; (2) an upper management threshold; (3) a low 
abundance threshold; and (4) a critical exploitation rate ceiling 
(Table 2 of the PEPD). The co-managers, in cooperation with NMFS, 
modeled the anticipated impacts of implementing the RMP, which uses 
these four harvest mortality limits in combination to manage the 
fisheries. Table 3 of the PEPD provides the anticipated range of 
exploitation rates and anticipated escapements for Puget Sound chinook 
salmon under the implementation of the RMP. In addition, in the RMP, 
the co-managers also presented data that suggest that significant 
reductions in the exploitation rate in some systems have not resulted 
in substantially higher returns of natural-origin chinook salmon. 
Although, this has not been conclusively demonstrated for many 
populations, it is suggestive that habitat, not fishery-related 
mortality, may be the limiting factor on production in some systems.
    Comment 6: The commenter states that the description of the various 
SUS exploitation rates is confusing. As an example, the commenter 
suggests that a comparison of Table 2 with Table 5 fails to clarify 
what, if any, the changes in fishery regimes would occur under the 
minimum fishery regime.
    Response: For most management units, the RMP's critical 
exploitation rate ceiling imposes an upper limit on southern United 
States (SUS) exploitation rates when spawning escapement for a 
management unit is projected to fall below its low abundance threshold 
or if Canadian fisheries make it difficult or impossible to achieve the 
RMP's rebuilding

[[Page 12198]]

exploitation rate. The co-managers define ``impossible'' if the 
northern fisheries by themselves impose an exploitation rate above the 
rebuilding exploitation rate or reduce abundance so that either the 
upper management threshold or the low abundance threshold could not be 
achieved even with zero SUS fishing. The co-managers define 
``difficult'' if, in order to achieve a total exploitation rate less 
than the rebuilding exploitation rate, or escapement above the upper 
management threshold, SUS fisheries directed at abundant un-listed 
chinook and other species would have to be constrained (W. Beattie, 
NWIFC, e-mail to K. Schultz, NMFS, August 6, 2004). The RMP provides a 
general description of the fisheries that will represent the lowest 
level of fishing mortality on listed chinook salmon proposed by the co-
managers. A general description of these minimal fisheries is outlined 
in Appendix C: Minimum Fisheries Regime of the RMP. In modeling the 
fisheries, instances where the RMP's critical exploitation rate ceiling 
was imposed on a management unit can be identified by reviewing the 
anticipated escapement or exploitation rates. If the anticipated 
escapement was below the RMP's low abundance threshold or if the 
exploitation rate was greater than the RMP's rebuilding exploitation 
rate, then the modeling exercise imposed the RMP's critical 
exploitation rate ceiling. Table 2 in the PEPD are the RMP's management 
objectives (rebuilding exploitation rate, upper management threshold, 
low abundance thresholds, and the critical exploitation rate ceiling), 
by management units and populations. Table 2 in the PEPD shows the 
change in the exploitation rate under the RMP's rebuilding exploitation 
rate and the exploitation rate under the minimum fishery regime, the 
critical exploitation rate ceiling. Table 5 in the PEPD are the most 
likely total exploitation rates, southern United States (SUS) 
exploitation rates, and escapements within the modeled forecasts under 
the implementation of the RMP by Puget Sound chinook salmon management 
unit or population. To assist the reader, a column was added to Table 5 
of the ERD and to the tables in Appendix A of the ERD that identify the 
management units in which the RMP's critical exploitation rate ceiling 
for that management unit was implemented during modeling.
    Comment 7: The commenter stated that under the RMP's minimum 
fishery regime, additional conservation measures on the SUS fisheries 
may be considered by the co-managers ``where analysis can demonstrate 
that additional conservation measures in fisheries would contribute 
substantially to recovery of a management unit ''. The commenter 
suggests that the RMP and the PEPD make no attempt to define or 
identify what would constitute a ``substantial'' contribution to 
recovery.
    Response: The co-managers propose that where analysis can 
demonstrate that additional conservation measures in fisheries would 
contribute substantially to recovery of a management unit, the co-
managers may, at their discretion, and in concert with other specific 
habitat and enhancement actions, implement them (see page 34 of the 
RMP). The need to define or identify what would constitute a 
substantial contribution to recovery is not needed to evaluate the RMP 
under Limit 6 of the ESA 4(d) rule. The co-managers, in cooperation 
with NMFS, have modeled the anticipated impacts of the implementation 
of the RMP. Appendix A of the PEPD contains the model run results. The 
analysis of the anticipated results of implementing the RMP, without 
the inclusion of these possible additional conservation measures in 
fisheries, was evaluated against the criteria under Limit 6 of the ESA 
4(d) rule. If the actual escapement outcome during the next five years 
is below that modeled, NMFS will meet with the co-managers to discuss 
possible additional management actions the co-managers may take. 
Additionally, NMFS may reconsider revoking the ESA 4(d) determination. 
However, the co-managers have instituted additional management measures 
under low abundance conditions in the past to decrease fishery impacts. 
The demonstrated willingness of the co-managers to constrain fisheries 
over the past 15 years, without certainty of substantial benefit to the 
ESU, gives NMFS some confidence in their future response to a 
population with a declining status.
    Comment 8: Table 2 of the PEPD summarizes the relationship between 
the various management objectives and exploitation rates for each 
management unit. The commenter believes that Table 2 is confusing and 
potentially misleading. In Table 2, some of the RERs [rebuilding 
exploitation rates] are expressed as pre-terminal SUS and SUS rates, 
without clearly identifying that the rate does not include impacts from 
Canadian and Alaskan Fisheries.
    Response: The categorization of the exploitation rates within the 
Table 2 of the PEPD is clearly identified as either total, southern 
United States (SUS), or pre-terminal southern United States (PT SUS). 
Additionally, Footnote 2 of Table 2 of the PEPD reads, in part, as 
follows: ``The SUS fishery includes all fisheries south of the border 
with Canada that may harvest listed Puget Sound chinook salmon. The SUS 
fishery includes both pre-terminal SUS and terminal SUS fisheries. The 
co-managers define a pre-terminal fishery as a ``fishery that harvests 
significant numbers of fish from more than one region of origin'' (page 
65 of the RMP). The co-managers define a terminal fishery as a 
``fishery, usually operating in an area adjacent to or in the mouth of 
a river, which harvests primarily fish from the local region of origin, 
but may include more than one management unit'' (page 65 of the RMP). 
The terminal SUS fisheries will vary by management unit and may occur 
in freshwater and marine areas.'' A similar description of the 
categorization of the exploitation rates can be found within the main 
body of the PEPD, on page 7.
    Comment 9: The commenter suggested that the RMP's critical 
exploitation rate ceilings are ``driven by policy considerations'' and 
not by biological (i.e., conservation) considerations. The commenter 
believes that these ``policy considerations'' are not described in the 
RMP and that their legal basis is not explicitly described, explained, 
and/or justified.
    Response: Although the RMP's critical exploitation rate ceilings 
were primarily based on policy concerns, biological and conservation 
considerations were also taken into account by the co-managers in 
developing the ceilings. All other harvest mortality limits in the RMP 
(rebuilding exploitation rates, upper management thresholds, and low 
abundance thresholds) were derived using biological consideration 
rather than policy-driven parameters. NMFS compared the proposed RMP's 
mortality limits, regardless of their basis, to the NMFS-derived 
standards. NMFS' evaluation focused on the effects of implementing the 
RMP's mortality limits. The co-managers, in cooperation with NMFS, 
modeled the anticipated impacts of implementing the RMP. A description 
of the co-managers' policy considerations used to develop the RMP's 
critical exploitation rate ceilings was not needed to evaluate the 
impacts of the RMP under Limit 6 of the ESA 4(d) rule. In recognition 
of tribal management authority and the Federal Government's trust 
responsibility to the tribes, NMFS is committed to considering their 
judgment and expertise regarding the conservation of trust resources. 
Consistent with this commitment and as a matter of policy, NMFS has 
sought, where there is appropriate tribal management, to work

[[Page 12199]]

with tribal managers to provide limited tribal fishery opportunities, 
so long as the risk to the population remains within acceptable limits.

Management Objectives and Indicators Comments

    Comment 10: The commenter states that the RMP proposes to manage 
harvest on the basis of the status of individual populations. The 
commenter suggests that the substance of the proposed regime overstates 
the extent to which the RMP is supportive of recovery within five 
management units: Nooksack, Skagit Summer/Fall chinook, Skagit spring 
chinook, Stillaguamish, and Snohomish. The commenter believes that in 
none of these four [five] management units is the maximum 
(``recovery'') exploitation rate based directly upon an estimate of the 
maximum allowable rate sustainable by the weakest component stock. The 
commenter believes that this reliance on management unit rates 
contradicts the claim by the RMP and the PEPD that the RMP proposes a 
harvest management regime in which exploitation rates are restricted by 
the weakest component population.
    Response: For most management units with multiple populations, the 
objectives in the RMP are based on the management for the weakest 
component (e.g. see Appendix A: Management Unit Status Profile of the 
RMP for the Snohomish Management Unit). In NMFS' evaluation of the RMP, 
the management unit's anticipated exploitation rate was applied to all 
populations within that management unit. When available, the 
anticipated exploitation rates on individual populations were compared 
to the corresponding population-specific NMFS-derived rebuilding 
exploitation rates. NMFS also derived a rebuilding exploitation rate 
for the Nooksack Management Unit, which contains two populations, 
because data was insufficient to develop a population-specific 
rebuilding exploitation rates. In this case, the anticipated 
exploitation rates for the Nooksack Management Unit were compared to 
the corresponding management unit-specific NMFS-derived rebuilding 
exploitation rate. Additionally, the anticipated population-specific 
escapements were compared to NMFS-derived critical and viable 
thresholds or to the generic guidance provided by the Viable Salmonid 
Populations document (VSP) (NMFS 2000b as cited in the PEPD). This 
approach evaluates the anticipated impacts of the RMP on weakest 
component population within each management unit. Results showed that 
the NMFS-derived rebuilding exploitation rates for the weakest 
population within a given management units were generally met and often 
below the NMFS-derived rebuilding exploitation rates. However, it also 
needs to be noted that although populations contribute fundamentally to 
the structure and diversity of the ESU, it is the ESU, not an 
individual population, which is the listed entity under the ESA.

Recovery Exploitation Rates Comments

    Comment 11: The commenter stated that the PEPD inappropriately 
references the draft risk assessment procedure (RAP) document of May 
30, 2000. The commenter suggested that the method described in this 
citation was superceded by a method described in a document titled 
``Viable Risk Assessment Procedure''. The commenter indicated that the 
latter document employed a harvest model more suitable for population 
viability modeling needed to assess harvest impacts on listed salmon 
populations.
    Response: The method outlined in NMFS' document titled ``A risk 
assessment procedure for evaluating harvest mortality of Pacific 
salmonids,'' dated May 30, 2000, is commonly referred to as the RAP 
model. Subsequent updates and improvements to the original RAP model 
resulted in the current model, known as the Viable Risk Assessment 
Procedure (VRAP) model. The VRAP model is what NMFS used to derive the 
rebuilding exploitation rates to evaluate the RMP. Unlike the RAP 
model, the VRAP model lacks complete documentation. However, the method 
used by NMFS to derive the rebuilding exploitation rates using the VRAP 
model are accurately described in NMFS' RAP document, as cited in the 
PEPD. The ERD was modified to make this clearer to the reader.
    Comment 12: The commenter challenges the PEPD's assertion that 
harvest at or below NMFS-derived RERs ``will not appreciably reduce the 
likelihood of rebuilding that population, assuming current 
environmental conditions based on specific risk criteria''. The 
commenter suggests that no details are provided by NMFS regarding 
assumptions and calculations in support of this finding. Consequently, 
the commenter believes that it is impossible for the reviewer to know 
what ``specific risk criteria'' were employed, and to thereby judge the 
appropriateness of NMFS' finding.
    Response: As stated on page 25 in the PEPD, NMFS-derived rebuilding 
exploitation rates were developed by using a simulation model to 
identify an exploitation rate for an individual population that meets 
specific criteria related to both survival and recovery, given the 
specified thresholds and estimated spawner/recruit parameters. The 
simulation used the population-specific threshold levels to identify an 
exploitation rate that met the following criteria: (a) the percentage 
of escapements less than the critical threshold value increase by less 
than five percentage points relative to no fishing, and either (b) the 
escapement at the end of the 25-year simulation exceeded the viable 
threshold at least 80 percent of the time or (c) the percentage of 
escapements less than the viable escapement threshold at the end of the 
25-year simulation differed from the no-fishing baseline by less than 
10 percentage points. The PEPD references Appendix C: Technical Methods 
- Derivation of Chinook Management Objectives and Fishery Impact 
Modeling Methods of the draft environmental impact statement (DEIS) on 
the proposed determination for a detailed explanation of rebuilding 
exploitation rate derivation. The PEPD also references NMFS' RAP 
modeling document, cited as NMFS 2000a, for additional information on 
how NMFS derived these rebuilding exploitation rates. Information 
provided in the PEPD, along with the information included and available 
by reference, provides the reviewer the information necessary to 
ability to evaluate NMFS' risk criteria.

Upper Management Thresholds Comments

    Comment 13: The commenter suggests that there is little real data 
available to the co-managers or NMFS on which to base firm, robust 
estimates of the current carrying capacity. The commenter stated that 
any estimate of a critical management threshold such as the maximum 
sustainable harvest (MSH) escapement level will inevitably be extremely 
uncertain. The commenter believes that it is extremely risky to employ 
such an uncertain point estimate as a management target, without at 
least acknowledging the uncertainty, which in practical terms should 
mean adjusting the target in a conservative direction relative to the 
risks associated with the uncertainty. The commenter believes that the 
PEPD fails to raise or discuss any critical considerations of these 
kinds about the approach taken by the RMP for estimating these 
escapement reference points and employing them in the proposed harvest 
management regime.
    Response: In the PEPD, NMFS used the best estimate of the level of

[[Page 12200]]

escapement that produces maximum sustainable yield (MSY) of the system. 
This level of escapement was referred to as the viable threshold in the 
evaluation. NMFS completed a comprehensive analysis to derive viable 
thresholds for a subset of Puget Sound chinook salmon populations 
(Table 8 of the PEPD). These viable thresholds are based on a spawner-
recruit analysis of historical catch and escapement data and include 
environmental variants. NMFS used these viable thresholds to determine 
the NMFS-derived rebuilding exploitation rates. The NMFS-derived 
rebuilding exploitation rates were set so that escapement would meet or 
exceed the viable threshold at least 80 percent of the time at the end 
of 25 years. By using at least 80 percent, one would on average obtain 
an escapement level greater than the MSY. During this fishery impact 
simulation modeling, NMFS assumed low marine survival rates for the 
salmon populations, which is conservative and risk adverse. 
Additionally, the RMP's rebuilding exploitation rates or escapement 
goals may be modified in response to the most current information about 
the productivity and status of populations, or in response to better 
information about management error. There is also uncertainty in the 
risk analysis simulation about actual exploitation rates beyond the 
duration of the RMP. The NMFS-derived rebuilding exploitation rates are 
based on simulations over a more conservative 25-year period, whereas 
the RMP's duration is for a much shorter duration. In other words, NMFS 
compared the RMP to NMFS' standards which were developed on simulations 
assuming fish would be harvested at a given rate over a 25-year period. 
NMFS' approach in evaluating the RMP is conservative and considers the 
uncertainty of the data and simulation outcomes.
    Comment 14: The commenter suggests that the impact of past (over-) 
harvest on aggregate stocks (management units) is not taken into 
consideration in the estimation of stock-recruitment relationships.
    Response: Development of data with which to manage Puget Sound 
chinook salmon has been an ongoing effort. Work towards a comprehensive 
approach to Puget Sound salmon harvest began in the late 1980s. A 
comprehensive chinook salmon management plan was implemented initially 
in 1997 by the co-managers. Revisions to the management framework have 
been made in subsequent years as new information became available. 
Subsequent Puget Sound chinook salmon escapements indicate that the 
reduced exploitation rates and other harvest management actions 
resulting from the implementation of these harvest plans have 
contributed to the stabilization and increase in Puget Sound chinook 
salmon escapement. The RMP has replaced the old escapement goals with 
rebuilding exploitation rates for several management units, and updated 
the escapement goals for others. However, the role of past harvest in 
current condition of the resource is not the primary consideration of 
the PEPD. The focus of the NMFS' evaluation is whether implementing and 
enforcing the proposed action will not appreciably reduce the 
likelihood of survival and recovery of the Puget Sound Chinook Salmon 
ESU over a range of possible abundance and fishing conditions 
anticipated in the next five years. In the PEPD, NMFS evaluated the 
RMP's response to low abundance and concluded that implementing and 
enforcing the RMP would not appreciably reduce the likelihood of 
survival and recovery of the Puget Sound Chinook Salmon ESU.
    Comment 15: The commenter states that the RMP establishes upper 
management thresholds for populations or management units using methods 
such as ``standard spawner-recruit calculations , empirical 
observations of relative escapement levels and catches, or Monte Carlo 
simulations that buffer for error and variability ''. The commenter 
suggests that the RMP's harvest thresholds, derived through these 
simulations, are not appropriately risk-averse.
    Response: The co-managers' method in establishing the RMP's upper 
management thresholds is risk-averse by acknowledging and attempting to 
account for known uncertainties. Many of the RMP's upper management 
thresholds were derived where sufficient data was available to use the 
classic spawner-recruit functions, augmented by incorporating 
environmental covariates. In addition, the spawner-recruit functions 
are fit by applying deviates from predicted calendar year escapements 
to observed escapements rather than the deviates of the estimated 
returns to predicted returns. Additionally, in the PEPD, NMFS compared 
the RMP's upper management thresholds to the NMFS-derived or VSP-
derived viable thresholds and found that they were similarly 
conservative and risk-averse.
    Comment 16: The commenter believes that the NMFS should not accept 
a 20-percent probability of not attaining a viable threshold within 
four to eight chinook generations.
    Response: The NMFS-derived rebuilding exploitation rates were set 
to result in attainment of the viable threshold in at least 80 percent 
of the simulation runs by the end of 25 years (see response to Comment 
13). NMFS' use of 25 years is conservative, as four to eight 
generations (number of generations in 25 years) is not a very long time 
to expect a population to respond to a change. Additionally, by using 
at least 80-percent as a condition, one would on average obtain an 
escapement level greater than this floor. NMFS' use of an 80 percent 
chance of achieving the viable threshold is reasonable. This approach 
is conservative considering uncertainty of the data and simulations.
    Comment 17: The commenter believes that inability to detect a 
difference between harvest and no harvest regimes should not suffice as 
a justification for harvesting [declining] stocks.
    Response: One of the criteria that must be adequately addressed to 
approve the RMP under the ESA 4(d) rule is that NMFS must conclude that 
implementing the RMP will not appreciably reduce the likelihood of 
survival and recovery of Puget Sound Chinook Salmon ESU (emphasis 
added). In its evaluation, NMFS estimated the impacts on the 
populations within the Puget Sound Chinook Salmon ESU under a no-
harvest regime and compares those results to the impacts associated 
with implementing the RMP. This comparison is necessary to assess 
whether or not implementation of the RMP will appreciably reduce the 
likelihood of survival and recovery of affected threatened ESU than if 
the action did not occur. NMFS-derived rebuilding exploitation rates 
were developed by using a simulation model to identify an exploitation 
rate for an individual population that meets specific criteria related 
to both survival and recovery, given the specified thresholds and 
estimated spawner/recruit parameters. The simulation used the 
population-specific threshold levels to identify an exploitation rate 
that met certain conditions (see response to Comment 12). One of those 
conditions is whether the percentage of escapements less than the 
critical threshold value increase by less than five percentage points 
relative to the baseline. The baseline assumes no salmon fisheries. 
This approach recognizes that a population may improve or decline 
irrespective of the proposed action being evaluated. In situations 
where freshwater or estuarine survival is severely compromised by 
degraded habitat, even the total elimination of the harvest may not

[[Page 12201]]

improve the population's productivity or status. If the risk assessment 
concludes that the percentage probability of escapements falling below 
the critical threshold will increase by less than five percentage 
points relative to the baseline, then it is reasonable to conclude that 
implementing the RMP will not appreciably reduce the likelihood of 
survival of Puget Sound Chinook Salmon ESU. The focus of NMFS' 
evaluation is on whether the difference is appreciable between the 
impacts associated with the implementation of the RMP and those that 
would still occur under the baseline.
    Comment 18: The commenter believes that the PEPD relies upon 
questionable and controversial estimates of current habitat capacity to 
justify estimates of upper management thresholds.
    Response: NMFS uses the best data available and continues to 
encourage the co-managers to improve and expand their data collection. 
Habitat capacity estimation is accomplished using several methods, and 
comparisons between results from the different methods are made to help 
evaluate the RMP. See response to Comment 19.
    Comment 19: The commenter suggests that the PEPD relies on 
Ecosystem Diagnosis and Treatment (EDT) modeling estimates of spawner-
recruit functions to argue that ``further harvest constraint will not, 
by itself, effect an increase above the asymptote associated with 
current productivity, until habitat conditions improve.'' The commenter 
believes that the EDT model has received very critical reviews from the 
Salmon Recovery Science Review Panel and from the Columbia Basin 
Independent Science Advisory Panel.
    Response: Calculating a rebuilding exploitation rate ideally 
requires knowledge of a spawner-recruit relationship based on 
escapement, age composition, coded-wire tag distribution, environmental 
parameters, and management error. These types of data are available for 
several management units (Table 8 of the PEPD). For populations with 
insufficient data to develop a spawner-recruit relationship, generic 
guidance from the VSP paper or, when available, analyses of habitat 
capacity (such as the EDT methodology) have been used to assist NMFS in 
evaluating the RMP's proposed thresholds. NMFS uses the best scientific 
data available in this evaluation. Habitat capacity is difficult to 
measure and estimation is now accomplished by several different 
methods. NMFS acknowledge that all models have strengths and 
weaknesses. NMFS has made appropriate comparisons of the models and 
their outputs to help evaluate the RMP's upper management thresholds.

Low Abundance Thresholds Comments

    Comment 20: The commenter states that the RMP defines a low 
abundance threshold as ``a spawning escapement level, set intentionally 
above the point of biological instability, which triggers extraordinary 
fisheries conservation measures'' to minimize fishery related impacts 
and increase spawning escapement. The commenter believes that the RMP's 
claim that the low abundance thresholds are set above the point of 
biological instability is misleading.
    Response: As required in section (b)(6)(iii) of the ESA 4(d) rule, 
the RMP must adequately address eleven criteria under section (b)(4)(i) 
in Limit 4. The analysis of the anticipated results of implementing the 
RMP, not the RMP's characterization, was compared against the criteria 
defined under Limit 6 of the ESA 4(d) rule (see response to Comment 5). 
After taking into account uncertainty, the critical threshold is 
defined as a point under current conditions below which: (1) 
depensatory processes are likely to reduce the population below 
replacement; (2) the population is at risk from inbreeding depression 
or fixation of deleterious mutations; or (3) productivity variation due 
to demographic stochasticity becomes a substantial source of risk (see 
page 15 of NMFS 2000b as cited in the PEPD). NMFS-derived critical 
thresholds ranged from 200 to 1,650 fish. These critical thresholds may 
be revised as additional information becomes available on how an 
individual population responds to low abundance. NMFS finds that the 
RMP's low abundance thresholds are generally set at or above what are 
considered to be critical thresholds (point of biological instability) 
for the chinook populations based on a survey of the literature and 
population-specific assessments. However, NMFS recognizes these 
thresholds are likely to vary over time as habitat conditions change.
    Comment 21: The commenter believes that the SUS exploitation rates 
will generally increase when the minimum fishery regime (equating to 
the RMP's critical exploitation rate ceiling) is triggered. This might 
occur under circumstances when total abundances are low enough that 
escapements are projected to be below a population or management unit's 
low abundance threshold. This outcome is relative to the circumstance 
when the regime is triggered due to the total RER being exceeded even 
though escapements are expected to be above the low abundance 
threshold.
    Response: For most management units, the RMP's critical 
exploitation rate ceiling imposes an upper limit on SUS exploitation 
rates when spawning escapement for a management unit is projected to 
fall below its low abundance threshold or if Canadian fisheries make it 
difficult or impossible to achieve the RMP's rebuilding exploitation 
rate. Modeling exercises by the co-managers demonstrate the potential 
for imposing the RMP's critical exploitation rate ceiling for several 
management units for the duration of the RMP (see response to Comment 
6). The proposed critical exploitation rates are ceilings that are not 
to be exceeded. The commenter suggests the SUS exploitation rates will 
be increased to meet the ceiling when the RMP's critical exploitation 
rate ceiling is imposed. This is not NMFS' understanding of the co-
managers' plans for implementing the RMP, nor was this outcome used as 
an assumption in how the fisheries were modeled. During modeling, if 
the SUS fisheries' impacts were already below the RMP's critical 
exploitation rate ceiling, the co-managers in modeling future fisheries 
did not increase the impacts of the SUS fisheries to reach this 
ceiling. If impacts under the implementation of the RMP are greater 
than expected, NMFS can withdraw the ESA 4(d) rule determination or ask 
the co-managers to adjust the fisheries' impacts.
    Comment 22: The biological importance of the low abundance 
thresholds was also of concern to the commenter. The commenter 
suggested that neither the RMP nor the PEPD clearly define the ``point 
of biological instability'' (critical threshold) or provide a clear 
quantitative explanation of how the proposed low abundance threshold 
levels are determined. The commenter further suggested that the PEPD 
does not provide any evidence that the RMP's low abundance thresholds 
are set far enough above putative points of biological instability to 
provide a precautionary and properly risk-averse margin of safety when 
they are crossed from above.
    Response: See response to Comment 20.
    Comment 23: The commenter stated that the RMP defines the point of 
instability as ``that level of abundance (i.e., spawning escapement) 
that incurs substantial risk to genetic integrity, or exposes the 
population to depensatory mortality factors.'' The commenter believes 
that with other critical terms employed in the RMP and the PEPD, no

[[Page 12202]]

explanation is provided or even attempted regarding what is meant by a 
``substantial'' risk or how such a level of risk is determined.
    Response: NMFS did not evaluate the RMP's definition of the point 
of instability. NMFS' evaluation focused on the effects of implementing 
the RMP's mortality limits, regardless of their basis. In the PEPD, 
NMFS compared the RMP's low abundance thresholds against NMFS-derived 
or VSP-derived critical thresholds threshold (see response to Comment 
20 for NMFS' definition of a critical threshold). The co-managers' 
basis in the development of the RMP's low abundance thresholds was not 
needed to make this comparison. In the PEPD, NMFS concludes that the 
RMP's low abundance thresholds are generally set at or above what are 
defined as, or considered to be, the critical thresholds.

Critical Exploitation Rate Ceiling Comments

    Comment 24: The commenter expressed concern that the application of 
an exploitation-rate ceiling in response to crossing a critical-
abundance threshold from above would be based on policy objectives 
rather than biological considerations.
    Response: See responses to Comments 9 and 21.
    Comment 25: The commenter expressed concern about an apparent 
disconnect between the descriptions of the Critical ER (exploitation 
rate) Ceilings and their apparent actual effects on impact rates. The 
commenter suggested that no discussion is offered in the PEPD on how a 
minimally acceptable level of access was determined, who determined it, 
or why.
    Response: The RMP does include discussion on how a minimally 
acceptable level of access was determined. See responses to Comments 5 
and 21.
    Comment 26: The commenter suggested that the association of the 
Critical ER Ceilings with RERs and the low abundance thresholds creates 
the implication of a two-tiered harvest regime for each MU (management 
unit), with separate impact-rate schedules above and below the 
thresholds. However, there is little indication that the provisions of 
the RMP would necessarily affect any significant difference in overall 
impacts on an MU, no matter what level of abundance it reaches, or 
whether or not Critical ER Ceilings are imposed.
    Response: See response to Comment 5 and 21.

Other Issues of Concern Comments

    Comment 27: The commenter believes that the range of variability in 
chinook salmon productivity is not fully considered. The commenter 
suggests that the PEPD uncritically accepts the likely range of 
abundances of adult chinook returns under the six-year RMP 
implementation period chosen by the co-managers for their modeling of 
the impacts of implementing the RMP. The commenter believes that the 
PEPD fails to require that the co-managers adopt more risk-averse 
modeling assumptions in estimating the likely impacts on listed chinook 
of the implementation of the RMP.
    Response: As mentioned earlier, Table 3 of the PEPD provides the 
anticipated range of exploitation rates and anticipated escapements for 
Puget Sound chinook salmon under the implementation of the RMP. Two 
variables were used in the modeling of the future fisheries to provide 
these anticipated ranges of exploitation rates and anticipated 
escapements. These modeling variables were abundance of returning 
salmon and impacts associated with the level of Canadian fisheries. The 
range of abundance was chosen by NMFS in consultation with the co-
managers and based on an examination of abundance and survival 
conditions in past years. The modeled salmon abundance in 2003 was used 
to estimate the upper end of the annual abundance returns under the 
implementation of the RMP. A 30-percent reduction in the 2003 abundance 
was used to represent the lower range of modeled returns. This range of 
modeled abundance is similar to the variation in observed abundance for 
the ESU over the last fourteen years. However, this range is considered 
conservative given the increasing escapement trend in recent years. 
Given the general trend of stable to increasing abundance, it is likely 
that if the actual abundance in the next five years falls outside this 
range, the actual abundance would most likely be greater. Under the 
implementation of the RMP, it is unclear if Canadian conservation 
actions will continue or if impacts will increase to maximum levels 
allowed under the Pacific Salmon Treaty. In modeling the Canadian 
fisheries, the impacts similar to fisheries in 2003 were used to 
represent the lower range of anticipated impacts. Maximum harvest 
levels allowed under the Pacific Salmon Treaty were modeled to 
represent the upper range of impacts associated with Canadian 
fisheries. Fisheries can not go above this level under the terms of the 
Pacific Salmon Treaty. The evaluation used the modeling based on the 
maximum harvest levels under the Pacific Salmon Treaty as the most 
likely to occur within this range. Canadian impacts, under the 
agreement of the Pacific Salmon Treaty, may not be greater than the 
level assumed as the most likely to occur.
    Comment 28: The commenter believes negative impacts of hatchery 
chinook salmon on natural-origin chinook salmon are ignored, 
misinterpreted, or inappropriately accepted. The commenter expressed 
that the Kendall Creek Hatchery is currently operating without ESA take 
authorization. The commenter suggests that the PEPD's assertions that 
the Kendall Creek hatchery population ``retains the genetic 
characteristics of the wild population,'' or that hatchery production 
at Kendall Creek ``buffers genetic and demographic risks'' to wild 
North Folk (NF) Nooksack River chinook salmon are precisely the 
assertions that NMFS has yet to make any determination over.
    Response: In its recent proposed revision of the Puget Sound 
chinook salmon ESA listing, NMFS has proposed that the Kendal Creek 
Hatchery population be determined to be part of the Puget Sound Chinook 
Salmon ESU 69 Fed. Reg. 33102, 33129 (June 14, 2004). NMFS has proposed 
the Kendall Creek Hatchery chinook population conservation-directed 
program may provide substantial benefits to VSP parameters for the 
North Fork Nooksack River spring chinook salmon population (see section 
6.2.1 of the Salmonid Hatchery Inventory and Effects Evaluation Report, 
An Evaluation of the Effects of Artificial Propagation on the Status 
and Likelihood of Extinction of West Coast Salmon and Steelhead Under 
the Federal Endangered Species Act, as posted on the NMFS, NWR's web-
site at: http://www.nwr.noaa.gov/1srd/Prop_Determins/Inv_Effects_Rpt/6_PSoundChinook.pdf, as accessed on December 15, 2004). The North 
Fork Nooksack River spring chinook salmon population is a unique 
population that will likely be considered important for recovery of the 
Puget Sound Chinook Salmon ESU to a viable level. The program likely 
benefits the abundance, diversity, and spatial structure of the North 
Fork Nooksack River population. NMFS and the co-managers recognize that 
the Kendall Creek hatchery-origin fish spawning in the South Fork 
Nooksack River are a risk, not a benefit to the South Fork Nooksack 
River population. This was one of the reasons that the co-managers 
reduced the Kendall Creek early chinook salmon hatchery production by 
50 percent in

[[Page 12203]]

2003 (W. Beattie, NWIFC, e-mail to K. Schultz, NMFS, August 6, 2004). 
However, the Kendall Creek Hatchery, and the other chinook hatchery 
programs in Puget Sound are currently under review by NMFS for our 
evaluation and determination under limit 6 of the ESA 4(d) rule. 
Therefore, this finding regarding the Kendall Creek Hatchery chinook 
population is considered preliminary. The ERD was modified to reflect 
that the Puget Sound hatchery programs are being reviewed by a separate 
Limit 6 determination of the ESA 4(d) rule.
    Comment 29: The commenter believes that the RMP lacks clarity in 
describing how it recognizes ``Viable'' and ``Critical'' concepts.
    Response: See response to Comment 20 for NMFS' definition of a 
critical threshold, which is consistent with the VSP paper for a 
critical threshold. The regulations in the ESA 4(d) Rule require that 
the RMP must use the concepts of ``viable'' and ``critical'' thresholds 
in a manner so that fishery management actions; (1) recognize 
significant differences in risk associated with viable and critical 
population threshold states, and (2) respond accordingly to minimize 
long-term risks to population persistence. The RMP defines its own 
upper management and low abundance thresholds, but these are readily 
comparable to the NMFS-derived or VSP-derived viable and critical 
thresholds. The ESA 4(d) rule also requires that harvest actions that 
impact populations that are currently at or above their viable 
thresholds must maintain the population or management unit at or above 
that level. Fishing-related mortality on populations above critical 
levels but not at viable levels (as demonstrated with a high degree of 
confidence) must not appreciably slow rebuilding to viable function. 
Fishing-related mortality to populations functioning at or below their 
critical thresholds must not appreciably increase genetic and 
demographic risks facing the population and must be designed to permit 
achievement of viable functions, unless the RMP demonstrates the 
likelihood of survival and recovery of the entire ESU in the wild would 
not be appreciably reduced by greater risks to an individual 
population. Table 9 in the PEPD is the post-listing threshold 
classification and escapement trend since listing for Puget Sound 
chinook salmon populations. In the PEPD, NMFS found the RMP was 
responsive to the populations' status, when compared to the critical or 
viable thresholds, as required by the ESA 4(d) rule.
    Comment 30: The commenter believes that there is a lack of 
consistency between the PEPD and RMP. The commenter received and 
reviewed information from WDFW regarding the co-managers' 2004 fishing 
plan, outlining model predictions of expected impacts and escapements 
for all management units. The commenter suggested that several of the 
exploitation-rate and escapement predictions fall well outside the 
range of likely impacts and escapements described in Table 3 of the 
PEPD.
    Response: NMFS, in cooperation with the co-managers, have modeled 
the anticipated impacts of the implementation of the RMP. NMFS 
recognized that in this modeling exercise, conservative assumptions 
were made and that there was always the possibility that in any 
individual year the results could be different than the range of 
possibilities considered. In recent years, the post-season assessment 
has generally shown that estimated exploitation rates are lower than 
pre-season projections, with the escapement often higher than predicted 
pre-season (W. Beattie, NWIFC, e-mail to K. Schultz, NMFS, August 6, 
2004). If impacts under the implementation of the RMP are greater than 
expected, NMFS can withdraw the ESA 4(d) rule determination or ask the 
co-managers to adjust fisheries to reduce impacts. Generally, the 2004 
pre-season modeled escapement results are within or greater than the 
range of predicted escapements in the PEPD. This can be, in part, 
attributed to the use of risk-averse modeling assumptions in modeling 
impacts and the resultant escapement under the RMP (see response to 
Comment 27).

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES), or through the documents available on the 
Sustainable Fisheries web site (see Electronic Access, under the 
heading SUPPLEMENTARY INFORMATION).

Authority

    Under section 4 of the ESA, NMFS, by delegated authority from the 
Secretary, is required to adopt such regulations as it deems necessary 
and advisable for the conservation of the species listed as threatened. 
The ESA salmon and steelhead 4 (d) rule (65 FR 42422, July 10, 2000) 
specifies categories of activities that are adequately regulated to 
provide for the conservation of listed salmonids and sets out the 
criteria for such activities. The rule further provides that the 
prohibitions of paragraph (a) of the rule do not apply to actions 
undertaken in compliance with a RMP developed jointly by the State of 
Washington and the Tribes and determined by NMFS to be in accordance 
with the salmon and steelhead 4 (d) rule (65 FR 42422, July 10, 2000).

    Dated: March 4, 2005.
Maria Boroja,
Acting Chief, Endangered Species Division, Office of Protected 
Resources,National Marine Fisheries Service.
[FR Doc. 05-4839 Filed 3-10-05; 8:45 am]
BILLING CODE 3510-22-S