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Federal Register / Vol. 86, No. 210 / Wednesday, November 3, 2021 / Rules and Regulations
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Council and NMFS determined that Amendment 14 is consistent with National Standard 10.
Comment 13: Closing an area to commercial fishing that has been heavily utilized for nearly a hundred years is not a management plan.
Response: NMFS disagrees. Area closures, including those specific to a fishery or gear type, are commonly used by the Council and NMFS to achieve conservation and management objectives for FMPs.
Comment 14: People who have spent their lifetime honing their craft and knowledge will see it taken away by the Council process and its recommendation to close the EEZ. Do not approve this action.
Response: NMFS acknowledges this comment, but notes that there is opportunity for the drift gillnet fishery to continue within State waters where it currently harvests over half of its average annual catch. Further, of the viable management alternatives, the Council determined and NMFS agrees that closing the Cook Inlet EEZ to commercial salmon fishing is the management approach most likely to avoid uncertainty and maximize harvest of Cook Inlet salmon stocks while preventing overfishing.
Comment 15: Appendix 12 provides the States answers on the impacts of its own proposal to close fishing in the EEZ. The State calls the EEZ portion of the Cook Inlet a small area. That is not accurate. The area is about 1,000 square miles and comprises about one-half of the Central District.
Response: NMFS interpreted small as relative to the entirety of Cook Inlet.
NMFS acknowledges that the Cook Inlet EEZ is a substantial portion of the Cook Inlet Central District where the UCI drift gillnet fleet may operate, as described in Section 4.5.2.1 of the Analysis.
National Standards 1 and 3
Comment 16: Amendment 14 is inconsistent with the Magnuson-Stevens Act, including National Standard 3, because it does not apply to the entire salmon fishery, including State waters management practices e.g., escapement goals, management plans, allocations, and in season management decisions.
Commercial fishers want a management plan that covers salmon stocks throughout their range to ensure management is consistent with the National Standards. This is not a request for preemption. NMFS own regulations require: The geographic scope of the fishery, for planning purposes, should cover the entire range of the stockss of fish, and not be overly constrained by political boundaries. 50 CFR

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600.320b. This action abdicates all Federal responsibility to the State to manage the fishery in State waters however it deems fit.
Response: NMFS determined that Amendment 14 is consistent with the Magnuson-Stevens Act, including National Standard 3. National Standard 3 states that, to the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination 16 U.S.C. 1851a3.
National Standard 3 guidelines explain how to structure appropriate management units for stocks and stock complexes 600.320. The Guidelines state that the purpose of the Standard is to induce a comprehensive approach to fishery management 600.320b. The guidelines define management unit as a fishery or that portion of a fishery identified in an FMP as relevant to the FMPs management objectives, and state that the choice of a management unit depends on the focus of the FMPs objectives, and may be organized around biological, geographic, economic, technical, social, or ecological perspectives 600.320d.
The Council and NMFS determined that prohibiting commercial fishing in the Cook Inlet EEZ subarea would best enable Cook Inlet salmon to be managed as a unit throughout their range. The best information about salmon abundance is available as salmon move into freshwaters and the number of spawning salmon can be counted. This is referred to as escapement, and provides State managers the information they need to increase or decrease fishing effort in-season based on whether enough salmon are making it into freshwater to reproduce sustainably.
Amendment 14 recognizes that management of salmon is best conducted through monitoring escapementthe point in the species life history that is most appropriate for assessing stock statusand that escapement happens in the river systems, not in the EEZ waters. Under Amendment 14, the State manages for all sources of fishing mortality. The State monitors actual run strength and escapement during the fishery, and utilizes in-season management measures that are closely coordinated across all Cook Inlet fishery sectors, including fishery closures, to ensure that escapement goals are met. Therefore, Amendment 14 best achieves the objectives of National Standard 3 and avoids reductions in catch that are expected to account for the uncertainty and preseason management requirements created by the only other
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viable management alternative Alternative 3.
Amendment 14 does consider the entire Cook Inlet salmon fishery and does apply to the entire Cook Inlet salmon fishery that occurs within the EEZ. Federal management must consider what occurs within State waters for planning purposes, in order to adequately determine what level of fishing may sustainably occur within the EEZ under the FMP consistent with the Magnuson-Stevens Act. However, the Magnuson-Stevens Act limits the jurisdiction of the Council and NMFS to Federal waters i.e., the EEZ for the implementation of management measures. As explained in the preamble to the proposed rule, Amendment 14
considers all commercial, recreational, and subsistence fishing that constitute the Cook Inlet salmon fishery. However, in order for a Federal FMP to govern fisheries occurring within State marine waters, the conditions for preemption under Magnuson-Stevens Act section 306b 16 U.S.C. 1856b, listed below, must both be met.
1. The fishery must occur predominantly within the EEZ.
2. The results of the States action or inaction must substantially and adversely affect the carrying out of the FMP.
As indicated by data presented in Sections 3.1, 4.5, and 4.6 of the Analysis, the conditions for preemption are not met in Cook Inlet. Under no circumstances does NMFS or the Council have authority to manage fishing within State internal waters.
Comment 17: NMFS incorrectly assumes that Alternative 3 requires Federal management to be responsive to State management to support Alternative 4. If NMFS sets maximum sustainable yield MSY, optimum yield OY, and annual catch limits ACLs for Cook Inlet salmon stocks, then the State must modify their management to comply with those limitations. If there is more harvest in EEZ waters then State waters harvest must be reduced to achieve OY. If the State is already managing the fishery in a manner consistent with the Magnuson-Stevens Act, then the dual management by the Council and the State should be seamless. Relatedly, some commenters suggested that NMFS implementing an OY that included State waters harvest is inconsistent with NMFSs stated inability to implement management measures within State waters.
Response: NMFS acknowledges that differences between Alternatives 3 and 4 were important in its consideration of Amendment 14. The State was not willing to accept a delegation of
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