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Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules a lawsuit in Federal district court challenging Amendment 12 and its implementing regulations. United Cook Inlet Drift Assn v. NMFS, No. 3:13cv 00104TMB, 2014 WL 10988279 D.
Alaska 2014. The lawsuit included a challenge to Amendment 12s removal of the Cook Inlet EEZ from the Salmon FMP. On appeal, the Ninth Circuit held that section 302h1 of the MagnusonStevens Act 16 U.S.C. 1852h1
clearly and unambiguously requires a Council to prepare and submit FMPs for each fishery under its authority that requires conservation and management.
United Cook Inlet Drift Assn v. NMFS, 837 F.3d 1055, 1065 9th Cir. 2016.
Because NMFS agreed that the Cook Inlet EEZ salmon fishery needs conservation and management by some entity, the Ninth Circuit ruled that the Magnuson-Stevens Act requires that it be included in the Salmon FMP.
Developing Management Alternatives The Council spent significant time from 2017 to 2020 developing and evaluating management alternatives to comply with the Ninth Circuits ruling.
The Council broadly identified two management approaches for amending the FMP, one that would incorporate the area into the Salmon FMP and delegate authority over specific management measures to the State with review and oversight by the Council Alternative 2;
Section 2.4 of the Analysis, and one that would incorporate the area into the Salmon FMP and retain all management within the Federal process Alternative 3; Section 2.5 of the Analysis. The Analysis identified the management measures and processes that would be required to implement these two approaches, as well as the complexities, uncertainties, benefits, costs, and burdens to fishery participants associated with these two approaches.
In October 2020, the Council considered all of this information and chose to identify an approach that would incorporate the Cook Inlet EEZ into the Salmon FMP and close the area to commercial salmon fishing as a separate and distinct management alternative Alternative 4; Section 2.6 of the Analysis. This approach was previously identified as a potential management outcome under Alternative 3. Similar to Alternative 3, Alternative 4 would retain all management within the Federal process and would not delegate management authority to the State. It is also noted that the Council considered taking no action Alternative 1; Section 2.3 of the Analysis, but this is not a viable approach because it would be inconsistent with the Ninth
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Circuit ruling and the MagnusonStevens Act.
To obtain important participant insight into the management of Cook Inlet salmon fisheries, the Council formed the Cook Inlet Salmon Committee Committee, consisting of Cook Inlet salmon fishery stakeholders from the harvesting and processing sectors. The Committee met six times from 2018 to 2020 to develop recommendations for the Council regarding management of the Cook Inlet EEZ. Ultimately, the Committee recommended that management be delegated to the State, but with expanded Federal oversight and review, as well as a management scope that included both the State marine and fresh waters of Cook Inlet. The Council did not include the Committees recommended alternative for further consideration because the Council does not have any jurisdiction over State fresh waters and can only assert jurisdiction over fisheries occurring within State marine waters under very limited circumstances if the Secretary preempts state management under section 306b of the Magnuson-Stevens Act 16 U.S.C. 1856b. The conditions required for preemption are not met for the salmon fisheries in the State marine waters of Cook Inlet. A more complete discussion of the Committees work and consideration by the Council can be found in Sections 1.4 and 2.7 of the Analysis, respectively.
Over the course of several years, Federal and State fisheries scientists and fishery managers developed proposed status determination criteria complete with all the reference points required by the Magnuson-Stevens Act for appropriate conservation and management of Cook Inlet salmon stocks. These criteria were reviewed by the Council and its Scientific and Statistical Committee SSC. This was a significant undertaking and integral to the development and analysis of alternatives. This process included input from State scientists currently managing the fishery, as well as comments from Committee members and other stakeholders. The proposed status determination criteria and reference points served as the foundation for proposed Federal management of the Cook Inlet EEZ
under Alternatives 2 and 3 but were also applied retrospectively to provide a comprehensive assessment of the States escapement-based management of Cook Inlet salmon stocks. The Analysis found that State management of Cook Inlet salmon stocks has been consistently appropriate for conservation within the bounds of the status determination
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criteria that would be implemented under Federal management. The analysis further determined that the addition of Federal management is unlikely to appreciably change salmon conservation metrics and thresholds established in Cook Inlet Section 3.1 of the Analysis. However, while conservation objectives for Cook Inlet salmon stocks were consistent across alternatives, the Analysis demonstrated that the ability to fully achieve these objectives while accounting for management uncertainty and management flexibility varied among alternatives Sections 3.1 and 4.7.1 of the Analysis.
Recognizing the significant regional, cultural, and economic importance of Cook Inlet salmon resources, the Council invested significant resources towards working to find solutions to challenges identified by stakeholders and fishery managers throughout the Salmon FMP amendment development process. While the Council identified some flexibility with the specific management measures that could be implemented under Federal management with specific management measures delegated to the State Alternative 2 and Federal management Alternatives 3 and 4, neither the Council, NMFS, the State, nor stakeholders were able to identify another fundamentally different management approach that could satisfy the Ninth Circuit ruling, the MagnusonStevens Act, and other applicable law.
After this extensive review and development process, and as explained in further detail below, the Council took final action to recommend Alternative 4
as Amendment 14 to the Salmon FMP.
The Council determined, and NMFS
agrees, that Federal management of the Cook Inlet EEZ through closure of the area to commercial salmon fishing 1
takes the most precautionary approach to minimizing the potential for overfishing, 2 avoids creating new management uncertainty, 3 minimizes regulatory burden to fishery participants, 4 maximizes management efficiency for Cook Inlet salmon fisheries, and 5 avoids the introduction of an additional management jurisdiction and the associated uncertainty it would add to the already complex and interdependent network of Cook Inlet salmon fisheries.
The Council considered but did not select Alternative 2, which would have delegated management authority over the Cook Inlet EEZ to the State. During Council deliberation, the State announced that it would not accept a delegation of management authority for Cook Inlet. Although section
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