[Federal Register Volume 67, Number 72 (Monday, April 15, 2002)]
[Rules and Regulations]
[Pages 18117-18129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9083]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 020402077-2077-01; I.D. 032502A]
RIN 0648-AP85


Magnuson-Stevens Act Provisions; Fisheries off West Coast States 
and in the Western Pacific; Pacific Coast Groundfish Fishery; Annual 
Specifications; Pacific Whiting

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

ACTION: Emergency rule to establish final 2002 groundfish fishery 
specifications for Pacific whiting; announcement of overfished status 
of Pacific whiting.

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SUMMARY: This emergency rule establishes the 2002 fishery 
specifications for Pacific whiting (whiting) in the U.S. exclusive 
economic zone (EEZ) and state waters off the coasts of Washington, 
Oregon, and California as authorized by the Pacific Coast Groundfish 
Fishery Management Plan (FMP). These specifications include the level 
of the acceptable biological catch (ABC), optimum yield (OY), tribal 
allocation, and allocations for the non-tribal commercial sectors. The 
intended effect of this action is to establish allowable harvest levels 
of whiting based on the best available scientific information. Table 1a 
and Section IV (B)(3) (the whiting specifications) of the annual 
specifications and management measures for the Pacific coast groundfish 
fishery, which was published in the Federal Register on March 7, 2002, 
are being revised by this emergency rule.
    With this Federal Register document NMFS announces that the whiting 
resource is considered overfished.

DATES: Effective April 15, 2002 until October 15, 2002. Comments must 
be received no later than 5 p.m., local time on May 15, 2002.

ADDRESSES: Send comments to D. Robert Lohn, Administrator, Northwest 
Region, NMFS, 7600 Sand Point Way N.E., BIN C15700, Bldg. 1, Seattle, 
WA 98115-0070. Comments also may be sent via fax to 206-526-6736. 
Comments will not be accepted if submitted via e-mail or internet. 
Copies of the environmental assessment (EA)/Regulatory Impact Review 
may be obtained from the Pacific Fishery Management Council (Council) 
by writing to the Council at 2130 SW Fifth Avenue, Suite 224, Portland, 
OR 97201, or by contacting Don McIsaac at 503-326-6352, or may be 
obtained from William L. Robinson, Northwest Region, NMFS, 7600 Sand 
Point Way N.E., BIN C15700, Bldg. 1, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Becky Renko or Yvonne deReynier 
(Northwest Region, NMFS) 206-526-6140; or Svein Fougner (Southwest 
Region, NMFS) 310-980-4040.

SUPPLEMENTARY INFORMATION: This rule is accessible via the Internet at 
the Office of the Federal Register's Website at http://www.access.gpo.gov/su--docs/aces/aces140.htm. Background information 
and documents are

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available at the NMFS Northwest Region website at http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htmand at the Council's website at 
http://www.pcouncil.org.

Background

    The FMP requires the Council to develop management specifications 
for groundfish species or species groups that it proposes to manage, 
each calendar year. These specifications include ABCs and, harvest 
levels (OY, harvest guidelines, or quotas).
    A proposed rule to establish the 2002 Pacific Coast groundfish 
fishery specifications and management measures was published in the 
Federal Register on January 11, 2002 (67 FR 1555), followed by a final 
rulemaking on March 7, 2002 (67 FR 10490).
    NMFS and the Council realized that the whiting biomass had 
decreased throughout the 1990s. In anticipation of a new whiting stock 
assessment that would be available in early 2002 and given the small 
amount of whiting typically landed under trip limits prior to the April 
1 start of the primary season, the Council chose to delay its final 
whiting recommendation until its March 2002 meeting. Therefore, the 
whiting harvest specifications from 2001 were carried over into 2002 
and remain in place until new specifications are established through a 
Federal rulemaking.
    The new assessment, which incorporated the 2001 hydroacoustic 
survey data, was complete and made available for examination by the 
Council's groundfish stock assessment review team (STAR) for whiting in 
late February. As a result of the new whiting stock assessment, it has 
been determined that the spawning stock biomass has substantially 
declined and has been lower during the past several years than 
previously estimated. The stock assessment estimated that the biomass 
in 2001 was 0.7 million mt, and that the female spawning biomass was 
less than 20 percent of the unfished biomass. This is substantially 
lower than the 1998 assessment which estimated the biomass to be at 39 
percent of its unfished biomass. The overfished threshold under the FMP 
is 25 percent of the unfished biomass; therefore, the whiting stock was 
overfished in 2001. The stock is estimated to be near 25 percent of the 
unfused biomass in 2002. In retrospect, revised biomass estimates based 
on the results of the new assessment indicate that the exploitation 
rates in 1999 (28 percent), 2000 (24 percent) and 2001 (31 percent), 
were above the overfishing level.
    Although a large amount of juvenile fish, spawned in 1999, are 
expected to mature and enter the fishery in the near future, the 
spawning biomass is not expected to increase above the maximum 
sustainable yield (MSY) biomass level of B40% for several years. Any 
increases in biomass will depend on the vigor of juvenile fish that 
mature and enter the fishery as well as the exploitation rates.
    With the publication of this document, NMFS is designating whiting 
as overfished. Because the whiting stock has been judged to be below 
its overfished/rebuilding threshold (B25%), the Council is required to 
develop a rebuilding plan to return the stock to greater than 40 
percent of its unfished biomass (B40%-the MSY biomass level).
    At its March 2002 meeting in Sacramento, CA, the Council reviewed 
the results of the new stock assessment. The Council was presented with 
a range of coastwide harvest levels based on three alternative harvest 
rates and three different assumptions about the amount (recruitment 
level) of juvenile fish that are expected to become part of the 
exploitable biomass in 2002. The three recruitment assumptions included 
a low recruitment of 2.11 billion fish (10 percent probability), a 
medium recruitment of 2.89 billion fish (80 percent probability), and a 
high recruitment of 3.87 billion fish (10 percent probability). At the 
time of the 2001 survey, the fish spawned in 1999 had only partially 
recruited to the fishery and were not well estimated by the model 
resulting in uncertainty about the effect these young fish would have 
on the exploitable stock biomass. As fish that spawned in 1999 mature, 
the whiting stock is expected to increase in size under each of the 
three recruitment assumptions. At the low recruitment level the biomass 
is projected to increase to between 25 percent and 28 percent of its 
unfished condition by 2003, for the range of 2002 harvest levels 
examined. At the high recruitment level, the biomass is projected to 
increase to between 38 percent and 42 percent of its unfished level by 
2003, using the same range of 2002 harvest amounts.
    These three recruitment level assumptions represent different 
degrees of risk in characterizing the amount of juvenile fish entering 
the fishery. A low recruitment assumption is most precautionary and 
represents a risk-averse approach, the medium recruitment is risk 
neutral, and the high recruitment assumption carries greater risk for a 
timely stock recovery. The Council's Scientific and Statistical 
Committee (SSC) chose to forward all three recruitment assumptions to 
the Council, while noting that the medium recruitment assumption was 
the risk neutral characterization of the incoming recruits to the 
fishery.
    In addition to the three recruitment assumptions, the SSC forwarded 
three harvest rates to the Council; these rates were based on the 
proxies of F40%, F45% and F50% (See the 2001 annual specification and 
management measures (66 FR 2338, January 11, 2001) for a description of 
harvest policies). Because the harvest rate is dependent on the stock 
productivity, different harvest rates can mean very different things 
for individual stocks. For a fast-growing stock, one that has a strong 
ability to maintain a moderate level of recruitment even when the 
spawning biomass is reduced, a higher fishing mortality rate, such as 
F40%, may be used. A rate of F40% can be explained as that which 
reduces spawning potential per female to 40 percent of what it would 
have been under natural conditions (if there were no mortality due to 
fishing) and is therefore a more aggressive harvest strategy than F45% 
or F50%.
    The OYs presented to the Council were reduced by the 40/10 default 
harvest policy (See the 2000 annual specification and management 
measures (65 FR 221, January 4, 2000) for a full description of the 40/
10 default harvest policy) because the stock biomass was estimated to 
be below B40%. When a stock is below B40%, the 40/10 policy is applied 
as a precautionary measure and is effectively a default rebuilding 
policy. The further a stock is below the B40% threshold, the greater 
the reduction in the OY, until at B10% the OY would be set at zero. 
This default rebuilding policy is intended to reduce the fishing 
pressure or mortality so that a stock b iomass below B40% will increase 
more rapidly than with a constant exploitation rate.
    Following discussion and public testimony, the Council recommended 
adopting a U.S.-Canada coastwide OY of 190,500 mt with a U.S. OY of 
152,400 mt (80 percent of the coastwide OY - the proportion caught in 
U.S. waters) the associated ABC was not available, but would be based 
on a harvest rate of F40% and assuming a medium-high recruitment 
scenario. NMFS is disapproving the Council's recommendation to adopt an 
ABC based on F40% with a medium-high recruitment scenario and will 
instead implement an ABC based on F40% with a medium recruitment 
scenario, which the Council's SSC characterized as a risk-neutral 
approach. The U.S.-Canada coastwide ABC will be set at 208,000 mt

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with a U.S. ABC of 166,000 mt. NMFS also is disapproving the Council 
recommended OY of 152,400 mt and will instead implement a U.S.-Canada 
coastwide OY of 162,000 mt and a U.S. OY of 129,600 mt. The OY is the 
ABC adjusted by the 40/10 harvest policy as a precautionary measure.
    NMFS believes that the risk neutral medium recruitment scenario, 
instead of one that accepts greater risk, is supported by the best 
available science given the current biomass estimate and the 
uncertainty associated with the estimates of recent year class 
strength. The 2002 retrospective analysis of recruitment estimates from 
the 1998 assessment resulted in recent recruitment strengths and 
biomass estimates being revised downward. This suggests that future 
stock assessments also have a reasonable expectation of revising the 
estimated strength of the 1999 year class to a lower value. It should 
be noted that the two most recent year classes prior to the 1998 
assessment (at an age equivalent to the 1999 year class in the new 
assessment) were estimated to be about 40 percent lower in the 2002 
assessment than in the 1998 assessment. Relative to the medium-high 
recruitment chosen by the Council, the 2002 stock assessment results 
suggest that a lower 1999 recruitment is two to three times more likely 
than a higher 1999 recruitment. The STAR Panel recognized the high 
variance associated with forecasting recruitment and suggested caution 
in using the projections for forecasting future biomass levels. The 
Council's choice to use a 1999 year class estimate midway between the 
medium and high estimates is inconsistent with the STAR Panel 
recommendation.
    The F40% harvest proxy will remain in place for 2002. The Council's 
STAR panel recommended moving to a more conservative level of F45%. The 
SSC did not make the same recommendation, but noted that the STAR panel 
recommendation was a risk-adverse policy and not risk-neutral advice. 
The SSC identified the F40% rate as reflecting a risk-neutral policy. 
While the F45% is by definition more conservative than the F40%, 
neither the STAR nor the SSC were presented with an analysis to 
evaluate the suitability of the F45% harvest rate proxy. Such an 
analysis was beyond the scope of the assessment. An evaluation of the 
harvest rate proxies for whiting should be completed before setting the 
2003 harvest level.
    The Council-recommended harvest level represents a 15.0--percent 
exploitation rate which based on what NMFS finds to be the best 
available science, is intermediate between the coastwide ABC of 208,000 
mt (the overfishing level) which represents a 16.4-percent exploitation 
level, and the default OY of 162,000 mt with the 40/10 adjustment, 
which represents a 12.8 percent exploitation level. Given the 
overfished status of whiting, NMFS believes the precautionary measures 
built into the 40/10 rule are necessary while a rebuilding plan is 
being developed.
    Projections indicate that if mean levels of recruitment occurred 
annually, an F40% harvest policy adjusted by the 40/10 rule, would 
rebuild the spawning stock to B40% within 7 to 9 years (2009-2011). 
However, it must be noted that given the highly skewed nature of the 
historical recruitment distribution, there is less than a 50 percent 
likelihood that annual recruitments would average the long-term mean 
during this short period.

Economic Impacts

    The U.S. OY recommended by the Council (152,400 mt) represents a 
20-percent reduction from the 2001 whiting OY, while the OY which NMFS 
is adopting (129,600 mt) represents a 32 percent reduction from the 
2001 whiting OY. In 2001, the ex-vessel value of whiting taken by all 
sectors was estimated to be approximately $13,415,000. Under the OY 
being adopted by NMFS (129,600 mt), the ex-vessel value of whiting is 
expected to be approximately $10,000,000; this is 25 percent less than 
the ex-vessel value in 2001. Reduced revenues from production will 
likely affect the ability of operations to not only cover their 
variable costs, but also their fixed costs. If it is not economically 
feasible for some shoreside or at-sea processors to participate in the 
fishery, the financial impacts of the reduction may be distributed 
disproportionately among recent participants. In the short term, the 
reduced OY is expected to have a major economic impact on harvesters 
and processors; however, NMFS believes the reductions are necessary for 
the long-term health of the whiting fishery.
    Concerns about the impacts on other groundfish fisheries were 
considered. Participants in the shore-based whiting fleet have 
accounted for roughly 50 percent of the annual harvest of species in 
the Dover sole, thornyhead, and sablefish (DTS) species complex, as 
well as at least 20 percent of the non-Dover sole flatfish species. 
Many whiting vessels target flatfish and DTS species after the whiting 
season. It is expected that the length of the whiting season would be 
reduced proportionately with the OY. Therefore, a drastically reduced 
OY would likely result in a shorter whiting season and increased 
fishing pressure on already constrained non-whiting fisheries, 
resulting in higher than expected landings, inseason reductions in trip 
limits, and possibly early closures.

Sector Allocations

    Each year, the whiting OY is allocated between the specific sectors 
of the fishery. The Pacific Coast Indian treaty fishing rights, 
described at 50 CFR 660.324, allow for the allocation of fish to the 
tribes through the annual specification and management process.
    Beginning in 1999, NMFS has set the tribal allocation according to 
an abundance-based sliding scale allocation method proposed by the 
Makah Tribe in 1998. See 64 FR 27928, (May 29, 1999); 65 FR 221, 247 
(January 4, 2000); 66 FR 2338, 2370 (January 11, 2001). Under the 
sliding scale allocation method, the tribal allocation varies in 
relation to the level of the U.S. whiting OY, ranging from a low of 14 
percent (or less) of the U.S. OY at OY levels above 250,000 mt, to a 
high of 17.5 percent of the U.S. OY at an OY level at or below 145,000 
mt. For 2002, the Makah Tribe has requested, and the Council has 
recommended, a tribal allocation of 22,680 mt, using the sliding scale 
allocation method. No other tribes have requested allocations for 2002.
    The sliding scale allocation method is the subject of two recent 
court decisions. In the treaty fishing rights case of U.S. v. 
Washington, Case No. C70-9213, Phase I, Sub-proceeding No. 96-2 (W.D. 
Wash., April 5, 2001), the Court considered several scientific 
affidavits submitted by NMFS and the Makah Tribe, and found that 
the allocation agreed on by the Secretary is a lawful 
exercise of his obligation to comply with the treaties guaranteeing 
Indian tribes their aboriginal right to take fish at their usual and 
accustomed fishing grounds. 143 F. Supp. 2d 1218, at 1224. 
The Court concluded: ``The sliding scale allocation method advocated by 
the Secretary and Makah shall govern the United States aspect of the 
Pacific whiting fishery until the Secretary finds just cause for 
alteration or abandonment of the plan, the parties agree to a 
permissible alternative, or further order issues from this court.'' Id.
    In Midwater Trawlers Cooperative v. U.S. Department of Commerce, 
282 F. 3d. 710, 2002 WL 338406 (9th Cir. 2002), the Ninth Circuit Court 
of Appeals upheld the tribal treaty right to Pacific whiting, upheld 
the usual and accustomed fishing area of the Makah Tribe, and found 
that the Makah Tribe

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is entitled, pursuant to the Treaty of Neah Bay, ``to one-half the 
harvestable surplus of Pacific whiting that passes through its usual 
and accustomed fishing grounds, or that much of the harvestable surplus 
as is necessary for tribal subsistence, whichever is less.'' However, 
the Court also found that the specific allocation in 1999 to the Makah 
Tribe was inconsistent with the scientific principles set forth in the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) (which requires that NMFS base fishery conservation and 
management measures on the best scientific information available), 
because NMFS did not adequately support the 1999 allocation set forth 
in the 1999 Federal Register document. Accordingly, the Court issued 
instructions to the District Court to remand to the agency for more 
specific findings. On remand, NMFS will be required ``to either 
promulgate a new allocation consistent with the law and based on the 
best available science, or to provide further justification for the 
current allocation that conforms to the requirements of the Magnuson-
Stevens Act and the Treaty of Neah Bay.''
    The Midwater Trawlers decision was just issued, and the case has 
not yet been formally remanded to the agency by the District Court. 
However, prior to the formal remand, NMFS must announce the 2002 
Pacific whiting allocations. NMFS has reviewed the best available 
scientific information, including the information contained in 
documents in the administrative record in the Midwater Trawlers case, 
and has also reviewed scientific information submitted by NMFS and the 
Makah Tribe in U.S. v. Washington, Sub- proceeding 96-2. NMFS has no 
additional information that alters the existing information on the 
distribution and migration pattern of the stock. Therefore, NMFS is 
relying on the existing information as the best scientific information 
available.
    Based on the information referenced above, NMFS concludes that an 
allocation of 22,680 mt of Pacific whiting to the Makah Tribe in 2002 
is within the tribal treaty right as described by the District Court in 
U.S. v. Washington, Sub-proceeding 96-2, and by the Ninth Circuit in 
the Midwater Trawlers decision. Since this is the amount requested by 
the Tribe, NMFS also concludes that it is sufficient to meet tribal 
subsistence needs for 2002, even though it may be less than the full 
treaty entitlement. NMFS will address these issues in more detail in 
its formal response to the Ninth Circuit decision.
    The non-tribal commercial OY for whiting is 106,920 mt (the 129,600 
mt OY minus the 22,680 mt tribal allocation). Regulations at 50 CFR 
660.323(a)(4) divide the commercial OY into separate allocations for 
the non-tribal catcher/processor, mothership, and shore-based sectors 
of the whiting fishery. The catcher/processor sector is composed of 
vessels that harvest and process whiting. The mothership sector is 
composed of motherships and catcher vessels that harvest whiting for 
delivery to motherships. Motherships are vessels that process but do 
not harvest whiting. The shoreside sector is composed of vessels that 
harvest whiting for delivery to shoreside processors. Each sector 
receives a portion of the commercial OY, with the catcher/processors 
getting 34 percent (36,353 mt), motherships getting 24 percent (25,661 
mt), and the shore-based sector getting 42 percent (44,906 mt).
    All whiting caught in 2002 before the effective date of this action 
will be counted toward the new harvest guideline. During the primary 
season, discards of whiting are estimated inseason from observer data 
and counted toward the OY. As in the past, the specifications include 
fish caught in state ocean waters (0-3 nautical miles (nm) offshore) as 
well as fish caught in the EEZ (3-200 nm offshore).

U.S.-Canada

    The 2002 allocation of the whiting resources between the U.S. and 
Canada is not yet resolved. The stock assessment was a collaborative 
effort between the two nations. However, the results of the new stock 
assessment were not available in time to hold formal negotiations with 
Canada before the March Council meeting. Consequently, the Council 
assumed continuation of the 80 percent share that the U.S. has set 
harvest levels at in recent years. NMFS believes that the F40 harvest 
rate with a medium recruitment assumption and a 40/10 harvest policy 
approach shows adequate precaution. The Council recommended that the 
future whiting negotiations between the U.S. and Canada be scheduled.

NMFS Actions

    For the reasons stated here, NMFS is amending the 2002 annual 
specifications and management measures (67 FR 10490, March 7, 2002) 
with the following changes:
    (1) Revise Table 1a. 2002 Specifications of Acceptable Biological 
Catch (ABC), Optimum Yields (OYs), and Limited Entry and Open Access 
Allocations, by International North Pacific Fisheries Commission 
(INPFC) Areas (weights in metric tons).
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    (2) Section IV NMFS Actions, B. Limited Entry Fishery, (3)Whiting 
is revised; and Section V Washington Coastal Tribal Fisheries, D. 
Pacific Whitingis revised.

B. Limited entry

* * * * *
    (3) Whiting. Additional regulations that apply to the whiting 
fishery are found at 50 CFR 660.306 and at 50 CFR 660.323(a)(3) and 
(a)(4).
    (a) Allocations. The non-tribal allocations, based on percentages 
that are applied to the commercial OY of 106,920 mt in 2002 (see 50 CFR 
660.323 (a)(4)), are as follows:
    (i) Catcher/processor sector--36,353 mt (34 percent);
    (ii) Mothership sector--25,661 mt (24 percent);
    (iii) Shore-based sector--44,906 mt (42 percent). No more than 5 
percent (2,245 mt) of the shore-based whiting allocation may be taken 
before the shore-based fishery begins north of 42 deg. N. lat. on June 
15, 2002.
* * * * *

V. Washington Coastal Tribal Fisheries

* * * * *

D. Pacific Whiting The tribal allocation is 22,680 mt.

Classification

    The final whiting specifications and management measures for 2002 
are issued under the authority of the Magnuson-Stevens Act and are in 
accordance with 50 CFR part 660, the regulations implementing the 
Pacific Coast groundfish FMP.
    For the reasons described below, the Assistant Administrator for 
Fisheries NOAA, finds that good cause exists to waive prior notice and 
opportunity for public comment under 5 U.S.C. 553(b)(B) as such prior 
notice and opportunity for public comment procedures are impracticable 
and contrary to the public interest. The Pacific Coast Groundfish FMP 
requires that fishery specifications be evaluated each year using the 
best scientific information available. A stock assessment for whiting 
was prepared in early 2002, using the most recent survey data.
    Because of the timing of the resource survey upon which the 
assessment is based, it was not available for use in a stock assessment 
that could be ready for the September-November management cycle when 
the rest of the groundfish

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specifications were set. In addition, the survey for this species is 
done only every 3 years. Therefore, the Council and NMFS decided it was 
best to use the newest data for the adoption of the 2002 ABC and OY in 
order, rather than use 4-year-old data from the prior survey. The 
preliminary indication from survey data was that the biomass had 
declined in recent years and the ABC and OY recommended for 2002 would 
be substantially lower than those for 2001. Therefore, for resource 
conservation purposes, it was particularly important to use the most 
recent data. Finally, since the major fishery for whiting does not 
start until April 1, there was time to delay the adoption of the new 
ABC and OY, until the new information was available in March. Last 
year's whiting specifications were carried over in the interim for 2002 
and were announced in a final rule published on March 7, 2002 (67 FR 
10490). In the final rule, it was explained that the specification 
would be adjusted following the Council's March meeting and announced 
in the Federal Register as an emergency rule. This action has been 
publicized widely through the Council process. It will not go through 
prior notice and opportunity for public comment as doing so would be 
impracticable and contrary to the public interest. It is impracticable 
and contrary to the public interest because NMFS needs to take 
immediate action to ensure that the whiting fishery stays within its 
overall harvest allocation (which is substantially lower than the 
harvest allocation for 2001) while allowing the various sectors of the 
fishery the opportunity to fully harvest their sector's allocations. To 
delay the rule beyond the start of the fishery could result in some 
sector allocations being exceeded and possible early closures for other 
sectors as a result of excessive harvest in the early season.
    The reasons described above, pursuant to 5 U.S.C. 553(d)(3), 
constitute good cause to waive the 30-day delay in effectiveness, so 
that this emergency rule may become effective before the fishery begins 
on April 1, 2002.
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS issued Biological Opinions (BOs) under the Endangered Species 
Act on August 10, 1990, November 26, 1991, August 28, 1992, September 
27, 1993, May 14, 1996, and December 15, 1999, pertaining to the 
effects of the groundfish fishery on chinook salmon (Puget Sound, Snake 
River spring/summer, Snake River fall, upper Columbia River spring, 
lower Columbia River, upper Willamette River, Sacramento River winter, 
Central Valley, California coastal), coho salmon (Central California 
coastal, southern Oregon/northern California coastal, Oregon coastal), 
chum salmon (Hood Canal, Columbia River), sockeye salmon (Snake River, 
Ozette Lake), and steelhead (upper, middle and lower Columbia River, 
Snake River Basin, upper Willamette River, central California coast, 
California Central Valley, south-central California, northern 
California, and southern California). NMFS has concluded that 
implementation of the FMP for the Pacific Coast groundfish fishery is 
not expected 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.
    NMFS has re-initiated consultation on the Pacific whiting fishery 
associated with the (whiting BO) issued on December 15, 1999. During 
the 2000 whiting season, the whiting fisheries exceeded the chinook 
bycatch amount specified in the whiting BO's incidental take 
statement's incidental take estimates, 11,000 fish, by approximately 
500 fish. In the 2001 whiting season, however, the whiting fishery's 
chinook bycatch was well below the 11,000 fish incidental take 
estimates. The re-initiation will focus primarily on additional actions 
that the whiting fisheries would take to reduce chinook interception, 
such as time/area management. NMFS is gathering data from the 2001 
whiting fisheries and expects that the re-initiated whiting BO will be 
completed by April 2002. During the reinitiation, fishing under the FMP 
is within the scope of the December 15, 1999, whiting BO, so long as 
the annual incidental take of chinook stays under the 11,000 fish 
bycatch limit.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior public comment.

    Dated: April 10, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-9083 Filed 4-12-02; 8:45 am]
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