2024-08368. Fisheries Off West Coast States; West Coast Salmon Fisheries; Measures To Keep Fishery Impacts Within the Conservation Objective for the California Coastal Chinook Salmon

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

This proposed rule would implement a set of management measures recommended by the Pacific Fishery Management Council (Council) 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 Council's Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Under the proposed 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 would be used to provide greater certainty in avoiding exceedances of the conservation objectives for CC Chinook salmon.

DATES:

Comments on this proposed rule must be received on or before May 23, 2024.

ADDRESSES:

A plain language summary of this proposed rule is available at https://www.regulations.gov/​docket/​NOAA-NMFS-2024-0009. You may submit comments on this document, identified by NOAA-NMFS-2024-0009, by the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and type NOAA-NMFS-2024-0009 in the Search box (note: copying and pasting the FDMS Docket Number directly from this document may not yield search results). Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on https://www.regulations.gov without change. All personal identifying information ( e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

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 at the spring (March and April) Council meetings each year of annual management measures. 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 and other ESA-listed species. The Salmon FMP includes harvest controls that are used to manage salmon stocks sustainably. The Salmon FMP also requires that the Council manage fisheries 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 and reminds the Council of requirements ( i.e., consultation standards) to maintain consistency with those opinions in its annual guidance letter to the Council regarding development of the annual ocean salmon management measures. To limit the effects of CC Chinook salmon, ocean salmon fisheries are managed to avoid exceeding a conservation objective for that stock.

The CC Chinook salmon Evolutionarily Significant Unit (ESU) has been listed as threatened under the ESA since 1999. The conservation objective for CC Chinook salmon is described in the Salmon FMP. Management of the fishery that avoids exceedance of the conservation objective has been analyzed in a series of biological opinions (most recently, an opinion issued in 2023), and has been determined to avoid jeopardizing the ESU (NMFS 2000; McInnis 2005; NMFS 2023; NMFS 2024). As described in these consultations, the 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.

From 2018 to 2022, the fishery HR on age-4 KRFC significantly exceeded 0.16 with an average of 0.28. Actions ( e.g., adjustments to ocean management models to account for these high catch rates and managing to a lower rate than the conservation objective) proved insufficient to avoid exceedance and the fisheries continued to exceed the conservation objective for CC Chinook salmon as well as impact limits on other California Chinook salmon stocks. The recent increases in the post-season KRFC age-4 ocean HR from 2018 through 2021 suggests that the level of impacts on CC Chinook salmon have likely increased.

For 2023, the Council considered additional measures to avoid another exceedance of the CC Chinook conservation objective. However, in response to record low forecasts for KRFC and Sacramento fall-run Chinook 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. The management measures for the 2023-2024 ocean salmon fishing season include the potential use of landing and possession limits in the commercial salmon troll fishery and bag limits in the recreational salmon fishery for the March and April 2024 fisheries, should salmon abundance forecasts for 2024 and Council discussion support use of those measures. The projected KRFC age-4 ocean HR of 0.003 for the 2023-24 management measures, with the fishery closures off California, resulted from a low number of encounters of KRFC salmon in fisheries north of California.

The Council continued to explore measures that could be taken to manage the commercial salmon troll fishery to address the source of the high catch rates of KRFC and stay within the conservation objective, thereby not exceeding the conservation objective for CC Chinook salmon. At the November 2023 Council meeting, the Council adopted a set of management measures to ensure that the CC Chinook salmon conservation objective is not exceeded. The management measures are intended to ensure the fishery does not exceed the conservation objective for CC Chinook by implementing management tools ( e.g., landing and possession limits, an overall allowable harvest level, inseason management) consistent with the provisions of the Salmon FMP.

Measures To Achieve Conservation Objectives for California Stocks of Chinook Salmon

The proposed fishery management measures are designed to ensure that the post-season ocean HR for age-4 KRFC does not exceed the conservation objective of 0.16. These measures would apply to the ocean salmon fisheries between the Oregon/California border and Pigeon Point, California.

The management measures included in this rule are focused on the ocean salmon fisheries off the coast of California ( 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 would require implementation of measures used in salmon fisheries elsewhere on the West Coast to ensure fisheries in the affected area do not exceed the conservation objective for CC Chinook salmon. Historically, fisheries in the area described above have been managed by setting seasons and bag limits. In addition, for this fishery there was no overall limit on harvest or inseason management. The Salmon FMP contemplates that the Council and NMFS will use a range of management tools 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.

Under the proposed set of management measures, annual management measures for the fisheries in the area described above will both be designed pre-season and managed inseason to stay within the objective. NMFS may apply, and the Council may recommend, a buffer to the conservation objective to account for management error and reduce the potential for exceeding the conservation objective, this buffer would be developed based on the percent error of the pre-season projected HR (as compared to the post-season HR) occurring over the most recent 5 years and other relevant factors. Fishery managers will compute an allowable harvest level of Chinook salmon for the year consistent with the conservation objective (including the buffer described above, if applicable). 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 proposed rule will also update regulations to 50 CFR 660.405 and 660.410. In § 660.405, the term “possess” was added to provide consistency to other prohibitions throughout the regulations. With the new regulation requiring submission of fish tickets within 24 hours of landing, the addition of the term “possess” will ensure that fishers are not confused about the requirements related to the timing of catch and retention, possession, or landings. Also, in addition to the new management measures at § 660.410, this proposed rule would revise paragraph (c) by adding the abbreviation KRFC to address several new occurrences of KRFC that did not exist before.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Salmon FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant adverse economic impact on a substantial number of small entities.

For purposes of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 220.2). A business primarily engaged in commercial fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 11411), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses (50 CFR 200.2; 13 CFR 121.201).

This proposed rule would directly affect the West Coast commercial troll salmon fishery. Using the Socioeconomic Assessment of the 2022 Ocean Salmon Fisheries (chapter IV) of the Review of 2022 Ocean Salmon Fisheries Stock Assessment and Fishery Evaluation Document for the Pacific Coast Salmon FMP the most recent year of complete fishing data (2022), had 563 distinct commercial vessels land fish caught in Washington, Oregon, and California. The total coastwide ex-vessel value was $22.2 million with California achieving $17.1 million, Oregon $3.2 million, and Washington $1.8 million. No vessel met the threshold to be considered a large entity as defined above. The preliminary number of vessel-based ocean salmon recreational angler trips taken on the West Coast in 2022 was 264,200. All of those charter businesses that are impacted are small entities. Because all of the affected entities are small, the management measures in this proposed rule are not expected to place small entities at a significant disadvantage to large entities.

Because businesses have been harvesting over the conservation objective for over 5 years (table 1), this regulation which is intended to bring catch levels back down to the conservation objective (0.16 HR on age-4 KRFC), is expected to impose negative economic effects on small businesses relative to the last 5 years. The proposed action does not change the management objectives for CC Chinook, it is designed to ensure that the fisheries do not exceed the objective using management and tools that are allowed under the Salmon FMP. The effects are not quantifiable with available resources on the timeline needed to implement this rule to achieve conservation objectives. However, NMFS invites comments on this proposed rule with information about costs to small entities.

Table 1—Estimates of Ocean Harvest Rates of Age-4 KRFC Salmon Pre- and Postseason in Recent Years

Year	Preseason age-4 harvest rate forecast	Post-season age-4 harvest rate estimate	Pre/post for years >16%
2017	0.03	0.04	0.75
2018	0.12	0.24	0.05
2019	0.16	0.36	0.44
2020	0.09	0.23	0.39
2021	0.11	0.28	0.39
2022	0.10	0.38	0.26

NMFS believes that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. This proposed rule contains revisions to a collection-of-information requirement subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act. This rule revises 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 will already be required by the California Code of Regulations.

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 conducted under the Salmon FMP and its implementing regulations are not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of critical habitat.

This proposed rule was developed after meaningful consultation and collaboration with the tribal representative on the Council.

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

Dated: April 15, 2024.

Samuel D. Rauch III,

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

List of Subjects in 50 CFR Part 660

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

For the reasons set out in the preamble, NMFS proposes to amend 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 (a)(2) to read as follows:

§ 660.405

Prohibitions.

(a) * * *

(1) Take and retain, or 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, or 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;

(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 FMP, which allows for limited fishing impacts when abundance falls below S_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 MSST.

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

(1) The annual specifications and management measures will include an allowable harvest level expressed in numbers of fish for these fisheries that is projected, using the Klamath Ocean Harvest Model and Sacramento Harvest Model, to ensure fisheries do not exceed the conservation objective. To determine the allowable harvest level, the Council and NMFS may use a harvest rate that is lower than the conservation objective ( i.e., harvest rate of 0.16) 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 for the previous 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 0.16.

(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 salmon fishery occur 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.