[Federal Register Volume 86, Number 175 (Tuesday, September 14, 2021)]
[Rules and Regulations]
[Pages 51017-51021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19783]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[RTID 0648-XA696]


Fisheries Off West Coast States; West Coast Salmon Fisheries; 
Amendment 21 to the Pacific Coast Salmon Fishery Management Plan

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

ACTION: Notice of agency decision.

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[[Page 51018]]

SUMMARY: NMFS announces the approval of Amendment 21 to the Pacific 
Fishery Management Council's (Council) Pacific Coast Salmon Fishery 
Management Plan (FMP). Amendment 21 establishes an annual Chinook 
salmon abundance threshold below which the Council and NMFS will 
implement specific management measures, through the annual ocean salmon 
management measures, to limit ocean salmon fishery impacts on the 
availability of Chinook salmon as prey for the Southern Resident killer 
whale (SRKW) distinct population segment (DPS) of Orcinus orca, which 
is classified as endangered under the Endangered Species Act (ESA).

DATES: The amendment was approved on August 31, 2021.

ADDRESSES: The amended FMP is available on the Council's website 
(www.pcouncil.org). The final National Environmental Policy Act (NEPA) 
environmental assessment (EA) is available on the NMFS website at 
https://www.fisheries.noaa.gov/west-coast/laws-and-policies/west-coast-salmon-harvest-nepa-documents.

FOR FURTHER INFORMATION CONTACT: Jeromy Jording at 360-763-2268, email 
at [email protected].

SUPPLEMENTARY INFORMATION: The ocean salmon fisheries in the exclusive 
economic zone (EEZ) (3-200 nautical miles, 5.6-370.4 kilometers) off 
Washington, Oregon, and California are managed under the FMP. The 
Magnuson-Stevens Fishery Conservation and Management Act (MSA) requires 
that each regional fishery management council submit any FMP or plan 
amendment it prepares to NMFS for review and approval, disapproval, or 
partial approval by the Secretary of Commerce (Secretary). The MSA also 
requires that NMFS, upon receiving an FMP or amendment, immediately 
publish a notice that the FMP or amendment is available for public 
review and comment.
    The Notice of Availability (NOA) for Amendment 21 was published in 
the Federal Register on June 2, 2021 (86 FR 29544), with a 60-day 
comment period that ended on August 2, 2021. In the NOA, NMFS also 
announced that a draft EA analyzing the environmental impacts of the 
actions implemented under Amendment 21 was available for public review 
and comment. NMFS received nearly forty thousand comments during the 
public comment period on the NOA. The comments included 39,432 comments 
that reiterated 6 scripts verbatim, and 448 unique comments from 
individuals and organizations. The majority of comments received were 
supportive of Amendment 21; however, some comments raised issues with 
the amendment. NMFS' authority for this action is limited by the MSA to 
approval, disapproval, or partial approval of the amendment submitted 
by the Council. NMFS is not disapproving Amendment 21 in response to 
the comments received. NMFS summarized and responded to these comments 
in the final EA, and under Comments and Responses, below.
    NMFS completed a biological opinion under section 7 of the ESA on 
the implementation of the FMP, including Amendment 21, and determined 
this action was not likely to jeopardize the continued existence of the 
SRKW distinct population segment or destroy or adversely modify its 
designated or proposed critical habitat (NMFS Consultation Number: 
WCRO-2019-04074; biological opinion signed April 21, 2021).
    NMFS determined that Amendment 21 is consistent with the MSA and 
other applicable laws, and the Secretary of Commerce approved Amendment 
21 on August 31, 2021. The June 2, 2021, NOA contains additional 
information on this action. Amendment 21 will be implemented through 
the annual salmon management measures; no changes to existing Federal 
regulations are necessary.
    Amendment 21 was developed by the Council to address impacts of the 
salmon fisheries managed under the FMP on Chinook salmon as prey for 
endangered SRKW. Amendment 21 establishes an annual Chinook salmon 
abundance threshold below which the Council and NMFS will implement 
specific management measures to limit ocean salmon fishery impacts on 
the availability of Chinook salmon as prey for SRKW. The development of 
Amendment 21 was informed by the risk assessment prepared by the 
Council's ad hoc SRKW Workgroup (Workgroup).\1\ The risk assessment 
affirmed Chinook salmon as the primary prey of SRKW based on a review 
of the scientific literature. The risk assessment assessed the 
potential overlap between SRKW and ocean salmon fisheries and the 
effects of these fisheries on SRKW. Chinook salmon, as well as coho 
salmon, are targeted in ocean salmon fisheries managed under the FMP. 
The Council adopted Amendment 21 at its November 2020 meeting. 
Amendment 21 was transmitted to NMFS by the Council on May 25, 2021. A 
detailed description of Amendment 21 is included in the NOA (86 FR 
29544, June 2, 2021).
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    \1\ The SRKW Workgroup's risk assessment report can be found on 
the Council's website: https://www.pcouncil.org/documents/2020/05/e-2-srkw-workgroup-report-1-pacific-fishery-management-council-salmon-fishery-management-plan-impacts-to-southern-resident-killer-whales-risk-assessment-electronic-only.pdf/.
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Comments and Responses

    NMFS received 39,880 comments during the 60-day public comment 
period on the NOA and the draft EA. The comments included 39,432 
comments that reiterated 6 scripts verbatim (i.e., form responses), and 
448 unique comments from individuals and organizations, during the 60-
day public comment period. The majority of comments, 99.8 percent, were 
in support of Amendment 21 (39,432 of the form responses and 366 of the 
individual responses). To address the volume of comments, NMFS 
identified each unique theme raised in the comments that were not 
simply supportive of Amendment 21. NMFS's responses to these themes are 
presented below.
    Theme 1: General support of Amendment 21. Of the 448 individual 
responses NMFS counted, 366 responses were received in support of the 
amendment. The 39,432 form responses were also in support of the 
amendment.
    Response: Thank you for your comment, your support for the 
amendment is noted and your participation in the public process is 
appreciated.
    Theme 2: General opposition of the amendment or requested changes 
to the amendment. Eighty two individual comments were received that 
were in opposition of the amendment, with rationale for their 
opposition in the general themes listed in the comments below.
    NMFS' response: Thank you for your comment, your opposition to the 
amendment is noted and your participation in the public process is 
appreciated. Responses to points made in your comments are addressed 
below.
    Theme 3: Alter hatchery production. Seventeen commenters requested 
Amendment 21 alter hatchery production to address prey availability for 
SRKW before altering fishery management.
    Response: The Council has no jurisdiction to alter hatchery 
production of salmon stocks, and NMFS's decision under Section 304 of 
the MSA is whether to approve, disapprove or partially approve 
Amendment 21. Therefore, altering hatchery production is outside the 
scope of this action. However, hatchery production levels affect the 
overall abundance of Chinook

[[Page 51019]]

salmon in the area north of Cape Falcon, OR, and could therefore affect 
the frequency at which abundance would fall below the low-abundance 
threshold included in Amendment 21 and additional management actions 
would be required. Hatchery production was included in the range of 
abundances evaluated by the Workgroup's risk assessment that informed 
framework of Amendment 21. We considered varying levels of abundances 
of salmon for different thresholds that would trigger fishery 
management restrictions in our analysis. These different levels could 
result from either increased hatchery releases or from natural 
production increases, or combinations of the two; therefore, our 
analysis takes into account salmon abundance changes regardless of 
source. Should hatchery production initiatives increase salmon 
abundance in the Council area, because the conservation objectives used 
to manage the ocean salmon fishery are mostly based on impacts to wild 
fish, additional hatchery fish would likely be disproportionately 
available as prey for SRKW.
    Theme 4: Address tribal fisheries. Forty-nine individual commenters 
requested addressing tribal fisheries equally as non-tribal fisheries 
in Amendment 21's requirements.
    Response: Under Section 304 of the MSA, NMFS approves, disapproves 
or partially approves the FMP amendment recommended by the Council. 
Requiring additional measures from tribal fisheries is therefore 
outside the scope of this action. The Council, which includes 
representatives of the affected states and of the treaty tribes, did 
not recommend an alternative that would have required limits on tribal 
fisheries beyond those already required to avoid exceeding conservation 
objectives for salmon stocks. NMFS concluded in its biological opinion 
that the fisheries implemented with the Council's recommended amendment 
are not likely to jeopardize SRKW. We have further concluded that 
Amendment 21 is consistent with the MSA and other applicable laws, 
including the ESA and treaty rights. Further, the fact that the Council 
did not recommend imposing limits on tribal fishing does not create an 
inconsistency with the MSA or other applicable laws.
    Theme 5: Address dams. Eighteen individual commenters requested 
addressing dams simultaneously in Amendment 21.
    Response: The Council has no jurisdiction over the operation of 
dams in the United States, and under Section 304 of the MSA, NMFS' 
action, with respect to the Council's recommendation of Amendment 21, 
is approval, disapproval, or partial approval. Therefore addressing the 
effects of dams on SRKW is outside the scope of this action. We sought, 
to the degree possible, to compare alternatives by quantifying their 
relative effects across varying degrees of abundance of salmon stocks. 
Therefore, to the degree that freshwater dam operations would alter the 
level of salmon abundance, we have captured that impact in the 
analysis.
    Theme 6: Address salmon predation by pinnipeds (i.e., seals and sea 
lions). Sixteen individual commenters requested managing seals or sea 
lions via Amendment 21 instead of taking action to limit the impacts of 
the fisheries on SRKW.
    Response: The Council has no authority nor responsibility for 
managing pinnipeds in the United States, and under Section 304 of the 
MSA, NMFS' action, with respect to the Council's recommendation of 
Amendment 21, is approval, disapproval or partial approval. Therefore, 
it is beyond the scope of this action to address the impacts of 
pinniped predation on salmon populations. Our analysis determined that 
pinniped populations that may interact with ocean salmon fisheries are 
at stable and historically high levels.
    Theme 7: Address salmon interception in Canadian, Alaskan, and 
inland fisheries, or interception in other sectors of the West Coast 
salmon fisheries. Thirty-three individual commenters requested that 
NMFS address the interception of salmon in other fisheries or sectors 
via Amendment 21. Additionally, several of the letter comments brought 
up a similar theme that the EA was not addressing prior fishery 
interceptions.
    Response: Under Section 304 of the MSA, NMFS' action with respect 
to the Council's recommendation of Amendment 21 is approval, 
disapproval or partial approval. Thus, it is not within the scope of 
this action to address fisheries managed under other Council FMPs. 
Also, as the Council does not have jurisdiction outside the EEZ off the 
coasts of the states of Washington, Oregon, and California, it would 
not be appropriate for the Council to recommend management measures to 
NMFS for salmon fisheries in other areas for implementation under the 
MSA. Finally, it is not within the scope of this action for NMFS to 
change the Council's recommended approach regarding different sectors 
of the ocean salmon fishery. We have accounted for the interception of 
salmon stocks in fisheries outside the Council's geographic areas of 
jurisdiction in evaluating the proposed action and alternatives. We 
recognize in the EA (page 5) that salmon fisheries in the Council area 
affect salmon abundances in other areas, including shoreward of the 
EEZ. With respect to interactions that occur before salmon reach the 
area under the jurisdiction of the Council, we note that salmon 
fisheries are managed consistent with the Pacific Salmon Treaty 
Agreement. The Council takes projected catch in fisheries in Canada and 
Alaska into account when designing its annual fishery recommendations, 
and that projected catch is factored into the estimation of Chinook 
salmon abundance that would be used to implement Amendment 21. The 
conservation objectives that the Council uses to manage fishery impacts 
to salmon stocks are in many cases overall exploitation rates that 
include catch in most or all of the fisheries that catch those stocks 
including those of interest to the commenters. The management for 
inside fisheries, including in fresh water and Puget Sound, similarly 
takes into account catch in the ocean. In the preseason planning 
process for the salmon fisheries, scientists from Federal, state, and 
tribal governments collectively analyze available data on salmon stocks 
using peer-reviewed models to forecast stock abundance and the impacts 
of various fisheries scenarios on those forecast abundances. Post-
season analyses are used to evaluate the effectiveness of salmon 
fisheries management in meeting the adopted goals. The models used for 
these analyses are routinely evaluated and updated.
    We disagree with comments that there is no explanation or guide to 
explain to the reader how information was modeled in the EA to address 
the effects of these other fisheries. We offer this clarifying response 
by pointing out the multiple elements of the EA. We point to Section 
4.1.2, Fish & Fisheries, where we explain how we included the suite of 
all fisheries restrictions that occur along the West Coast that might 
affect the SRKW in order to isolate the effects of implementing the 
proposed action from the effects of other fisheries that affect salmon 
abundance in the EEZ. We explain in the EA (page 59) that the catch 
that occurred in the past, notably in the 1990s, occurred under fishery 
management regimes that were not as restrictive as of those today, now 
that additional ESA restrictions for salmon stocks are in place. We 
describe the newly negotiated Pacific Salmon Treaty Agreement, which 
places further

[[Page 51020]]

restrictions on fisheries from those that occurred in the past. Under 
Section 304 of the MSA, NMFS' action with respect to the Council's 
recommendation is approval, disapproval or partial approval, but we 
still account in our analysis for the removal of all fish in areas 
regulated in other management forums that would otherwise reach the 
EEZ. In fact, the Council's Workgroup report and methodology, which we 
explain in the EA at Appendix A (Description of modeling methods and 
results), very specifically stated that ``[f]or fisheries from 
Southeast Alaska (SEAK) to Cape Falcon, Oregon, we modified the 
postseason fishery data in an effort to ensure compliance with some of 
the key contemporary conservation requirements that currently drive 
fishery planning.'' More simply put, this means we set harvest levels 
in Alaska, Canada, and Puget Sound fisheries at levels consistent with 
the regulatory framework in place in 2020, and ran coast-wide abundance 
estimates from years prior to 2020 through these contemporary 
fisheries. This gave us an estimate of the remaining abundance in the 
area under the jurisdiction of the Council, to which Amendment 21 would 
be applied.
    Theme 8: Evaluate a higher threshold or add in additional 
alternatives in the EA. Multiple letters commented that evaluating 
either higher thresholds, or a no fishing alternative, would have been 
more informative.
    Response: Thank you for your comments. We have updated the EA 
incorporating a ``no fishing scenario'' alternative incorporating the 
analysis the Workgroup had already performed in order to examine the 
impacts to the environment of a no fishing scenario.
    Therefore, by incorporating an alternative that completely closes 
Council-area salmon fisheries, including a threshold higher than those 
in the range of alternatives analyzed in the EA is unnecessary. 
Alternative 4 captures the maximum amount of prey that could be 
available to SRKW in the absence of fisheries. Comments requesting 
evaluating higher thresholds were focused on assuming that a particular 
threshold level of Chinook salmon abundance would promote sustained 
growth of SRKW. The results of evaluating Alternative 4, based on the 
available data, indicate a complete closure of ocean salmon fisheries 
within the EEZ would not significantly benefit SRKW.
    The preferred alternative was developed through the Council 
process, and the action before NMFS is to approve, disapprove, or 
partially approve Amendment 21. NMFS does not have the authority to 
substitute one threshold for another, and has now evaluated multiple 
levels of abundance that would act as threshold for SRKW as prey to 
determine if there is a specific level that provides a significant 
benefit to the whales. Our analysis, consistent with that of the 
Workgroup, could find no significant quantifiable benefit, even when 
Council-area salmon fisheries were completely closed. The preferred 
alternative, analyzed under the ESA, and concluded the action was not 
likely to jeopardize the continued existence of SRKW or adversely 
modify their critical habitat, provides more benefit to SRKW than 
continuation of the No Action alternative, and therefore, NMFS approved 
the Amendment.
    Theme 9: Require additional management measures as part of the 
responses required [e.g., multiple letters commented vessel-monitoring 
systems (VMS) should have been required].
    Response: Under Section 304 of the MSA, NMFS' action, with respect 
to the Council's recommendation, is approval, disapproval or partial 
approval of Amendment 21. Additional management measures are therefore 
outside the scope of this action. The commenters have not identified 
any inconsistency of Amendment 21 to the MSA and other applicable law 
resulting from the lack of a VMS requirement or other specific measures 
suggested.
    Theme 10: Amendment 21 will not recover SRKW.
    Response: Under Section 304 of the MSA, NMFS' action is to approve, 
disapprove, or partially approve Amendment 21. Recovery of SRKW, such 
that listing under the ESA is no longer required, will take actions, in 
addition to those proposed under Amendment 21, that are outside the 
scope of this action. NMFS' final recovery plan for SRKW (which we 
provide a link for in the EA at page 74) reviews and assesses the 
potential factors affecting their survival and recovery, and lays out a 
recovery program to address each of the threats (reduced prey 
availability and quality, high levels of contaminants from pollution, 
and disturbances from vessels and sound). The recovery plan also 
emphasizes that these threats act synergistically, and that addressing 
one factor on its own will not recover the species. ESA recovery plans 
provide important context for NMFS' determinations pursuant to section 
7(a)(2) of the ESA including assessment of the management framework 
under Amendment 21. NMFS issued a biological opinion analyzing the 
effects of salmon fisheries managed under the FMP, including Amendment 
21, and concluded such action was not likely to jeopardize the 
continued existence of SRKW or adversely modify their critical habitat. 
The goal of Amendment 21 is to help ensure that Council's harvest 
management is responsive to the status of SRKWs and supports recovery. 
The Council's ocean salmon fisheries are required to be consistent with 
the conservation and management objectives of the FMP, the MSA, and the 
ESA.
    NMFS is committed to working with the Council, states, tribes and 
our other partners to take actions to improve conditions for the 
whales, and we recognize the fisheries are only one activity that has 
contributed to the current SRKW condition, and only one source of 
potential risk. Federal funding associated with the 2019 Pacific Salmon 
Treaty Agreement is currently being used to produce additional hatchery 
fish to increase prey availability for SRKW, and to improve the status 
of Puget Sound Chinook salmon populations through habitat restoration 
and conservation hatchery production, which is expected to further 
increase prey availability. As noted above, the 2019 Pacific Salmon 
Treaty Agreement itself includes reductions to fisheries. In addition 
we are working closely with state and local partners to improve water 
quality in SRKW habitat, and reduce vessel disturbance and interference 
with foraging so that the existing Chinook salmon are more accessible 
to the whales. Working with a variety of partners, we are implementing 
actions identified in our review of the existing vessel regulations to 
improve compliance with regulations and guidelines to improve habitat 
conditions for the whales. NMFS recently designated critical habitat 
for SRKW along coastal waters of Washington, Oregon, and California (86 
FR 41668, August 2, 2021), and additionally we are implementing actions 
recommended through the Governor of Washington's SRKW Task Force 
process. For more information about SRKW conservation and recovery 
actions underway, please refer to NMFS' West Coast Region website: 
https://www.fisheries.noaa.gov/west-coast/endangered-species-conservation/southern-resident-killer-whale-orcinus-orca.
    Theme 11: NMFS failed to directly respond to public comments during 
this process. Several letters commented that written comments submitted 
by organizations throughout the process did not receive written 
responses.
    Response: NMFS is responding to public comments on proposed 
Amendment 21 and the draft EA,

[[Page 51021]]

consistent with legal requirements. Until this point, the process that 
has occurred has been through the Council and is governed by the MSA. 
Both the Workgroup and Council meetings were open to the public and 
public participation was encouraged. Each Workgroup meeting and Council 
meeting were noticed in the Federal Register at least 23 calendar days 
prior so the public was informed and able to attend. The Council heard 
input from members of the public at all stages of the Council's 
development and consideration of Amendment 21, and the Council 
considered the publics' input in making its decision to recommend 
Amendment 21 to NMFS.
    Theme 12: NMFS failed to prepare an Environmental Impact Statement 
(EIS) instead of an EA. Several letters commented that NMFS should 
instead have performed an EIS.
    Response: NMFS determined that preparing an EA here was the 
appropriate level of analysis. NMFS did not receive any comments that 
indicate the methodology utilized for assessing the effects of the 
fisheries from the alternatives considered in the EA is inadequate, was 
not based on the best available scientific information, or otherwise 
flawed. The comments also did not reveal new information that had not 
been considered by the Workgroup, the Council, or NMFS in their 
analysis or decision making or identify any significant effects of the 
proposed action. NMFS used this methodology to evaluate the effects of 
the alternatives, including proposed Amendment 21, on the environment 
including SRKW, and concluded there are no significant impacts to the 
environment from the preferred alternative.
    Theme 13: NMFS should alter critical habitat or designate Marine 
Protected Areas through the proposed action (e.g., designate critical 
habitat in Hood Canal and should ``enforce '' critical habitat).
    Response: Under Section 304 of the MSA, NMFS' decision is to 
approve, disapprove, or partially approve Amendment 21. Therefore, 
alterations to critical habitat or Marine Protected Areas are outside 
the scope of the action.
    Theme 14: Address or construct management measures that include 
climate change considerations (e.g., multiple letters commented on 
recommending risk-averse Chinook salmon management procedures in the 
context of rising environmental stresses on Chinook salmon populations 
due to effects from climate change).
    Response: Basing the proposed action's triggered response on an 
aggregate abundance threshold of Chinook salmon is inherently 
responsive to climate change, as this approach anticipatorily 
incorporates any effect that climate change may have on Chinook salmon 
abundances.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: September 8, 2021.
Jennifer M. Wallace,
Acting Director of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2021-19783 Filed 9-13-21; 8:45 am]
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