2024-17992. Fisheries off West Coast States; West Coast Salmon Fisheries; Measures to Keep Fishery Impacts Within the Conservation Objective for the California Coastal Chinook Salmon

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Department of Commerce

National Oceanic and Atmospheric Administration

1. 50 CFR Part 660
2. [Docket No. 240807-0215]
3. RIN 0648-BM68

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule will implement a set of management measures to ensure fishery impacts on California Coastal (CC) Chinook salmon, which are listed as threatened under the Endangered Species Act, remain within the conservation objective in the Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Under the final rule, management tools ( e.g., trip limits (also known as landing and possession limits) and inseason management) consistent with the provisions of the Salmon FMP will be used to provide greater certainty in avoiding exceedances of the conservation objectives for CC Chinook salmon.

DATES:

Effective September 13, 2024.

ADDRESSES:

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to https://www.reginfor.gov/​public/​do/​PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.

FOR FURTHER INFORMATION CONTACT:

Shannon Penna, Fishery Management Specialist, at 562-980-4239 or [e-mail].

SUPPLEMENTARY INFORMATION:

Background

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 Salmon FMP. The Salmon FMP and implementing regulations govern the development of annual management measures at the spring (March and April) Pacific Fishery Management Council (Council) meetings each year. Management measures for the salmon fisheries are developed annually because the abundance of the salmon stocks in the fishery can fluctuate significantly from one year to the next and information about annual stock abundance does not become available until early in each year (January-early March).

The commercial and recreational salmon fisheries off northern California and southern Oregon target healthy or abundant stocks of Chinook and coho salmon, but may incidentally encounter Endangered Species Act (ESA)-listed CC Chinook salmon. The CC Chinook salmon Evolutionarily Significant Unit (ESU) has been listed as threatened under the ESA since 1999. The Salmon FMP includes harvest controls that are used to manage salmon stocks sustainablyand requires that the fisheries be managed consistent with “consultation standards” for stocks listed as endangered or threatened under the ESA for which NMFS has issued biological opinions. NMFS has issued biological opinions for every ESA-listed salmon species impacted by the fisheries governed by the Salmon FMP. A series of biological opinions on the CC Chinook salmon ESU (NMFS 2000; McInnis 2005; NMFS 2023; NMFS 2024) have concluded that management of the salmon fishery that avoids exceedance of the conservation objective will avoid jeopardizing the ESU. As described in these biological opinions, the available data are insufficient for developing an ESU-specific conservation objective for CC Chinook salmon. Thus, NMFS has relied on a surrogate, Klamath River fall-run Chinook Salmon (KRFC), to evaluate and limit impacts on CC Chinook salmon in ocean salmon fisheries. The conservation objective is an ocean harvest rate (HR) on age-4 KRFC of 0.16. In its 2024 biological opinion, NMFS confirmed that managing fisheries to avoid exceeding this conservation objective would avoid jeopardy to CC Chinook salmon. ( print page 66012)

From 2018 to 2022, the fishery HR on age-4 KRFC significantly exceeded 0.16 with an average of 0.28. Adjustments to ocean management models were made to account for these high catch rates, and fisheries were managed to stay within a lower rate than the conservation objective, but the fisheries continued to exceed the conservation objective for CC Chinook salmon The recent increases in the post-season KRFC age-4 ocean HR from 2018 through 2021 suggest that the level of impacts on CC Chinook salmon have likely increased.

For 2023, in response to record low forecasts for KRFC and Sacramento fall-run Chinook (SRFC) salmon, the Council ultimately recommended the closure of commercial and recreational salmon fisheries off the coast of California for 2023, and NMFS approved this closure.

In the fall of 2023, the Council considered recommending additional measures to address the high catch rates of KRFC and stay within the conservation objective for CC Chinook salmon. At the November 2023 Council meeting, the Council voted to recommend a set of management measures to ensure that the CC Chinook salmon conservation objective is not exceeded, including landing and possession limits, an overall allowable harvest level, and inseason management consistent with the provisions of the Salmon FMP.

In 2024, the Council again recommended the closure of commercial and recreational salmon fisheries off the coast of California through calendar year 2024, and NMFS approved the closure.

Measures To Achieve Conservation Objectives for California Stocks of Chinook Salmon

The management measures included in this rule will apply to the ocean salmon fisheries between the Oregon/California border and the U.S./Mexico border ( i.e., California Klamath Management Zone, Fort Bragg, San Francisco, and Monterey management areas) for the following reasons:

1. The majority of the KRFC harvest (and assumed impacts on CC Chinook salmon) in the ocean occurs in this area;

2. The age-4 ocean HR for KRFC in this area has consistently exceeded pre-season projections in recent years;

3. Contact-rate-per-unit-effort in this area has exceeded projections in recent years;

4. The fisheries in this area have been managed primarily through season controls such as time and area restrictions (as opposed to use of landing and possession limits and/or quota management);

5. Time and area restrictions in this area have not been effective in controlling harvest of KRFC (and assumed impacts on CC Chinook salmon) in recent years; and

6. Ocean fisheries in other areas that impact KRFC routinely implement the same or similar management measures as described in these measures for a similar purpose.

The rule requires implementation of measures used in salmon fisheries elsewhere on the West Coast to ensure fisheries off the coast of California do not exceed the conservation objective for CC Chinook salmon. The Salmon FMP contemplates that a range of management tools will be used to ensure the fisheries are managed to avoid exceeding all limits for stocks caught in the various management areas along the West Coast (FMP chapter 6). These management tools ( e.g., management boundaries, seasons, quotas, minimum harvest lengths, fishing gear restrictions, and recreational day bag limits) are available to manage ocean fisheries each season, once the allowable ocean harvests and the basis for allocation among user groups have been determined. New information on the fisheries and salmon stocks also may require other adjustments to the management measures.

Consistent with the proposed rule, 89 FR 30314 (April 23, 2024), this final rule adds new 50 CFR 660.410(d), which requires fishery managers to set an allowable harvest level of a number of Chinook salmon for each year, consistent with the conservation objective (including the buffer described as follows). In setting the annual harvest level, the Council may recommend and NMFS may applya buffer to the conservation objective to account for management error and reduce the potential for exceeding the conservation objective. The default buffer would be the percent error (defined as the difference between the preseason projected HR and the post-season estimated HR, divided by the post-season estimated HR, and expressed as a percentage) averaged over the most recent 5 years. Other relevant factors such as revisions to the fishery management models used to estimate the preseason Chinook catch, environmental indicators relevant to the status of KRFC, constraints on fisheries under consideration for the areas and months with greatest impacts to KRFC Chinook, may be considered to further refine the buffer. Using the allowable harvest level and projected effort, managers will determine landing and possession limits pre-season to ensure that the fishery does not exceed the allowable harvest level. The fishery will be monitored inseason and actions will be taken as needed to prevent the fisheries from exceeding the annual harvest level. We expect that this multilayered conservative approach ( i.e., a buffer, fishery output control, and inseason actions) will ensure that the fisheries remain within the pre-season projection and adhere to the CC Chinook salmon conservation objective. This final rule also updates regulations at 50 CFR 660.405 and 660.410. In § 660.405, the term “possess” was added to provide consistency with other prohibitions throughout the regulations. The addition of the term “possess” will ensure that fishers are not confused about the requirements related to the timing of take, retention, possession, or landings, particularly in relation to the requirement included in this rule that fish tickets be submitted within 24 hours of landing. In addition, this final rule would revise paragraph (c) of § 660.410 by adding the abbreviation “KRFC” to address several new occurrences of that acronym that did not exist before.

Public Comments

NMFS received seven comment letters. Of these letters, three comment letters were from private citizens and are not relevant to this action.

Comment 1: The California Department of Fish and Wildlife (CDFW) and a private citizen were in support of the action. In the years preceding the 2023 and 2024 ocean salmon fishery closures, CDFW advocated for an inseason management system to ensure CC Chinook salmon remain within its conservation objective. CDFW supports the transition to inseason harvest management of California commercial ocean salmon fisheries by utilizing caps on allowable harvest and establishing vessel-based landing and possession limits.

Response: NMFS thanks CDFW and the private citizen for their expressed support for this action.

Comment 2: PCFFA and a private citizen expressed concern about the validity of using KRFC as surrogate stock for evaluating impacts on CC Chinook salmon and the effect that landing and possession limits will have on the commercial fishing industry and communities. PCFFA also asserts that the shortcomings of using KRFC as a surrogate for CC Chinook salmon were not acknowledged. PCFFA acknowledges that catch rates in the California commercial troll fishery have ( print page 66013) exceeded expectations over the past decade and asserts that harvest models have been unreliable.

Response: The conservation objective for CC Chinook salmon is defined in the Salmon FMP. This rule does not modify the CC Chinook salmon conservation objective, which is required by the applicable biological opinion developed pursuant to the ESA. Rather, the final ruleauthorizes the use of measures allowed under the Salmon FMP to ensure that the existing conservation objective is not exceeded. The assumptions and limitations of the CC Chinook salmon conservation objective were expressly discussed in supplemental reports and presentations during the rulemaking process and in the biological opinion NMFS issued in February 2024 on the implementation of the FMP including the proposed measures. The best available scientific information does not support an alternative conservation objective at this time.

Contact rate-per-unit-effort in the California commercial troll fishery has significantly exceeded model expectations leading to HRs that have frequently and substantially exceeded the CC Chinook salmon conservation objective from 2018 to 2022. In 2021 and 2022, the model used to predict harvest of KRFC was updated, and a conservation buffer was applied to the pre-season projection. Despite this concerted effort to avoid another exceedance, the 2022 fisheries exceeded the objective by more than double. This action is intended to manage the commercial salmon troll fishery to address the source of the high catch rates of KRFC and stay within the CC Chinook salmon conservation objective.

Comment 3: PCFFA commented that landing and possession limits and/or quota management will have devastating consequences for commercial fishing businesses, coastal communities, and wild food production in California.

Response: PCFFA does not elaborate on the potential consequences of this final rule or provide any analysis or estimates. In the Federal Register notification for the proposed rule, NMFS acknowledged that the action is expected to impose negative economic effects on small businesses relative to the 2018 to 2022 time period. This is because fishery participants harvested Chinook salmon at a level up to two times the conservation objective during 2018 to 2022. The action is intended to ensure catch levels do not continue to exceed the conservation objective. Additionally, the commercial and recreational fisheries off the coast of California were closed in 2023 and 2024. These closures were in response to low abundance forecasts for KRFC and SRFC. Chinook fisheries off the coast of Califoria, successfully operated under the CC Chinook salmon conservation objective, will provide a greater benefit to communiites by avoiding future closures.

Changes were made from the proposed rule to clarify the language and not changing the substance from the proposed rule.

Classification

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Salmon FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification or on the economic impacts of the rule generally. As a result, a regulatory flexibity analysis was not required and none was prepared.

This final rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This rule changes the existing requirements for the collection of information 0648-0433 by adding a requirement for submission of fish tickets within 24 hours of landing. Public reporting burden for fish ticket submission is estimated to average 0 hours because the submission is already be required by the California Code of Regulations, this rule only changes the requirement for timing of that submission.

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted to the following website: https://www.reginfo.gov/​public/​do/​PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0433.

Notwithstanding any other provision of the law, no person required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

A formal section 7 consultation under the ESA was initiated for the Salmon FMP. In a biological opinion dated February 29, 2024, NMFS determined that fishing activities pursuant to this rule will not affect endangered and threatened species or critical habitat in any manner not considered in prior consultations on West Coast ocean salmon fisheries managed under the Salmon FMP and its implementing regulations are not likely to jeopardize the continued existence of that species or its critical habitat.

This final rule was developed after meaningful consultation and collaboration with the Tribal representative on the Council.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indians-lands
• Recreation and recreation areas
• Reporting and recordkeeping requirements
• Treaties

Dated: August 8, 2024.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as follows:

PART 660—FISHERIES OFF WEST COAST STATES

1. The authority citation for part 660 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.,16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

2. In § 660.405, revise paragraphs (a)(1) and (2) to read as follows:

§ 660.405

Prohibitions.

(a) * * *

(1) Take and retain, possess, or land salmon caught with a net in the fishery management area, except that a hand-held net may be used to bring hooked salmon on board a vessel.

(2) Fish for, take and retain, or possess any species of salmon:

(i) During closed seasons or in closed areas;

(ii) While possessing on board any species not allowed to be taken in the area at the time; ( print page 66014)

(iii) Once any catch limit is attained;

(iv) By means of gear or methods other than recreational fishing gear or troll fishing gear, or gear authorized under § 660.408(k) for treaty Indian fishing;

(v) In violation of any action issued under this subpart; or

(vi) In violation of any applicable area, season, species, zone, gear, daily bag limit, or length restriction.

* * * * *

3. In § 660.410, revise paragraph (c) and add paragraph (d) to read as follows:

§ 660.410

Conservation objectives, ACLs, and de minimis control rules.

* * * * *

(c) De minimis control rules. Klamath River fall Chinook (KRFC) and Sacramento River fall Chinook salmon have the same form of de minimis control rule described in the Salmon FMP, which allows for limited fishing impacts when abundance falls below S_MSY (the abundance of adult spawners that is expected, on average, to produce MSY). The control rule describes maximum allowable exploitation rates at any given level of abundance. The annual management measures may provide for lower exploitation rates as needed to address uncertainties or other year-specific circumstances. The de minimis exploitation rate in a given year must also be determined in consideration of the following factors:

(1) The potential for critically low natural spawner abundance, including considerations for substocks that may fall below crucial genetic thresholds;

(2) Spawner abundance levels in recent years;

(3) The status of co-mingled stocks;

(4) Indicators of marine and freshwater environmental conditions;

(5) Minimal needs for Tribal fisheries;

(6) Whether the stock is currently in an approaching overfished condition;

(7) Whether the stock is currently overfished;

(8) Other considerations, as appropriate; and

(9) Exploitation rates, including de minimis exploitation rates, must not jeopardize the long-term capacity of the stock to produce maximum sustained yield on a continuing basis. NMFS expects that the control rule and associated criteria will result in decreasing harvest opportunity as abundance declines and little or no opportunity for harvest at abundance levels less than half of the maximum stock size threshold (MSST).

(d) Salmon fisheries affecting California Coastal Chinook. Salmon fisheries off the coast of California affecting this ESA-listed stock are managed to meet the conservation objective described in Salmon FMP table 3-1.

(1) The annual specifications and management measures will include an allowable harvest level expressed in numbers of Chinook salmon for the salmon fisheries off the coast of California that is projected, using the Klamath Ocean Harvest Model and Sacramento Harvest Model, to ensure fisheries do not exceed the conservation objective. A harvest rate that is lower than the conservation objective may be used to determine the allowable harvest level in order to address the potential for exceeding the objective in a particular year. The lower harvest rate will be determined in two steps.

(i) In the first step, NMFS and the Council will calculate the average percent error (defined as the difference between the preseason projected HR and the post-season estimated HR, divided by the post-season estimated HR, and expressed as a percentage) averaged over the most recent 5 years, and apply the average percent error to the conservation objective. Only positive percent error will be applied because the intent is to keep the post-season harvest rate below the conservation objective.

(ii) In the second step, other relevant factors affecting the preseason assessment of the age-4 KRFC harvest rate will be considered, such as revisions to the fishery management models used to estimate the preseason Chinook catch, environmental indicators relevant to the status of KRFC, constraints on fisheries under consideration for the areas and months with greatest impacts to KRFC Chinook, and the lower harvest rate may be modified based on these factors.

(2) The annual specifications and management measures will include the following management measures to ensure fisheries affecting California Coastal Chinook do not exceed the allowable harvest level.

(i) Landing and possession limits will be used in the commercial troll fisheries to keep fishery catch within the allowable harvest level. Landing and possession limits will be set for periods not to exceed 1 week. Landing and possession limits may vary from one calendar month to the next but will be the same for periods within the same calendar month.

(ii) A percentage of the allowable harvest level ( i.e., trigger) that will require consideration of inseason action to ensure that the allowable harvest level is not exceeded will be set through the annual management measures.

(iii) For the first 2 years after the promulgation of this rule in which a salmon fishery occurs in the EEZ off the California coast, inseason actions will only be used to further restrict harvest ( i.e., reduce landing limits, reduce time/area, and close the fishery when the allowable harvest level is projected to have been met).

(3) Electronic fish tickets must be submitted within 24 hours of landing to the California Department of Fish and Wildlife. Fish tickets must be submitted in accordance with the requirements of the applicable State regulations.

(4) NMFS will implement inseason actions as described in § 660.409, following processes described in that section, as needed to ensure catch in the fishery does not exceed the allowable harvest level and will close areas and seasons upon reaching the allowable harvest limit.