[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62401-62402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25334]



[[Page 62401]]

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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 and extension of expiration date.

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SUMMARY: This action extends an emergency rule, now in effect, that 
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 
maintain allowable harvest levels of whiting based on the best 
available scientific information.

DATES: The expiration date of the emergency rule published on April 15, 
2002 (67 FR 18117), is October 15, 2002. This action extends the 
emergency rule until April 15, 2003.

ADDRESSES: Copies of the environmental assessment/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 Donald 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: Electronic Access: This rule is accessible 
via the Internet at the Office of the Federal Register's Web site at 
http:// www.access.gpo.gov/su_docs/aces/aces140.html. Background 
information and documents are available at the NMFS Northwest Region 
Web site at http://www/nwr.noaa.gov/1sustfsh/gdfsh01.htm and at the 
Council's Web site at http://www.pcouncil.org.

Background

    On April 15, 2002, NMFS published an emergency rule (67 FR 18117) 
establishing a whiting acceptable biological catch (ABC) based on F40% 
F proxy with a medium recruitment scenario. The U.S.-Canada coastwide 
ABC was set at 208,000 mt, with a U.S. ABC of 166,000 mt. That 
emergency rule also adopted a U.S.-Canada coastwide optimum yield (OY) 
of 162,000 mt and a U.S. OY of 129,600 mt.
    Each year, the whiting OY is allocated between the tribal and 
commercial 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. 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.
    For 2002, NMFS set the tribal whiting allocation at 22,680 mt. The 
non-tribal commercial OY for whiting is 106,920 mt (the 129,600 mt OY 
minus the 22,680 mt tribal allocation). Each non-tribal 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).
    Additional information concerning the 2002 whiting ABC and OY and 
sector allocations of whiting may be found in the April 15, 2002 (67 FR 
18117), Federal Register document for this action. Extension of this 
emergency rule is authorized under section 305(c)(3)(B) of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).

Comments and Responses

    During the comment period, NMFS received 1 letter from an 
association representing seafood processors and associated businesses 
that process, transport and sell whiting products. The comments 
resulted in no change to the emergency rule.
    Comment 1: We request that the emergency rule be withdrawn and re-
issued to establish whiting harvest levels as recommended by the 
Pacific Fishery Management Council.
    Response: The Council's recommendation was disapproved by NMFS 
after considering the best available science. NMFS believes that the 
risk neutral medium recruitment scenario, instead of the Council's risk 
accepting recommendation, is supported by the best available science. 
With the April 15, 2002, emergency rule (67 FR 18117) extension herein, 
NMFS adopted a U.S. ABC of 166,000 mt and an OY of 129,600 mt, 
consistent with the risk neutral medium recruitment scenario.
    Comment 2: The commenter requests that the treaty Indian tribal 
allocation of whiting be reduced to ``reflect a percentage reduction 
equal to that imposed on non-tribal fishermen.''
    Response: Presumably the commenter refers to the fact that the 
tribal share for 2001 was 14.4 percent of the OY, while for 2002 it is 
17.5 percent (and would have been 16.4 percent under the PFMC proposal 
rejected by NMFS).
    The tribal share is determined by a ``sliding scale,'' OY-based 
methodology. This methodology, which has been in use since 1999, 
provides for a slighter higher percentage of the OY to go to the treaty 
fishery at lower OY levels (to a maximum of 17.5 percent), with lower 
percentages to the treaty fishery at higher OY levels. The ``sliding 
scale'' methodology was used to set the tribal shares in both 2001 and 
2002. For OYs under 145,000 (as in 2002), this method sets the tribal 
share at 17.5 percent.
    The sliding scale methodology has been the subject of extensive 
litigation, which continues today. In United States v. Washington, the 
Court held that the ``sliding scale'' methodology is consistent with 
the Magnuson-Stevens Act, and is the best available scientific method 
to determine the appropriate allocation of whiting to the tribes. 
United States v. Washington 143 F.Supp.2d 1218 (W.D. Wash. 2001). This 
ruling was reaffirmed in July 2002. Midwater Trawlers Cooperative v. 
Daley, C96-1808R (W.D. Wash. 2002) (Order Granting Defendants' Motion 
to Supplement Record, July 17, 2002). Additional briefing will occur in 
this case. However, at this time NMFS remains under a Court Order in 
United States v. Washington to use the ``sliding scale'' methodology 
unless the Secretary of Commerce finds just cause for its alteration or 
abandonment, the parties agree to a permissible alternative 
methodology, or further order issues from the Court. As one of these 
events has not yet occurred, NMFS is obligated by the Court to continue 
to use the ``sliding scale'' methodology. Since the methodology already 
encompasses OYs at all levels, it is not appropriate to reduce the 
tribal share specified by the ``sliding scale'' methodology simply 
because the OY declines.

[[Page 62402]]

    Comment 3: The Federal Register document lists recruitment 
assumptions and their probabilities as point estimates and ignores the 
ranges associated with these. The Council's recommended OY was within 
the medium range and is risk neutral in spite of NMFS' attempt to 
characterize it as something else.
    Response: The Council's Scientific and Statistical Committee noted 
that the ``medium'' recruitment assumption with an F40% FMSY proxy was 
the risk neutral characterization of the incoming recruits to the 
fishery. NMFS believes that the Council's choice to use a 1999 year 
class estimate midway between the medium and high estimate did not 
adequately protect the whiting stock given the high variance associated 
with forecasting recruitment and future biomass levels.
    Comment 4: The retrospective analysis which shows that past 
recruitment levels in previous assessments were lower than predicted 
has no bearing on future assessments.
    Response: The primary source of uncertainty in the whiting 
assessment concerned estimates of the fish spawned in 1999. At the time 
of the 2001 survey, the fish spawned in 1999 had only partially 
recruited to the fishery. Therefore, recruitment level of these young 
fish in the near future was not well estimated by the model and 
resulted in uncertainty about the effect they would have on the 
exploitable stock biomass. The 2002 stock assessment results suggest 
that a lower estimate of recruitment of the 1999 year class is two to 
three times more likely than a higher recruitment estimate. As fish 
spawned in 1999 mature and more survey and fishery dependent data 
become available, the strength of the 1999 year class will be better 
understood.
    Comment 5: Detailed economic information provided by the public was 
not reflected in the Federal Register document and the economic impact 
was downplayed by NMFS.
    Response: Although it was not specifically noted in the Federal 
Register document, NMFS did review economic information provided by the 
public at the Council's March 2002 meeting before making a final 
decision. NMFS recognized and clearly stated that the reduced whiting 
OY was expected to have a major economic impact on harvesters and 
processors in the short-term. However, NMFS believes the reductions 
were necessary for the long-term health of the whiting fishery.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA,) has 
determined that this extension is needed to maintain the current ABC 
and OY for the entire year. The non-tribal catcher/processor sector's 
fishing activities are ongoing. Whiting is an overfished species and 
needs to be protected from overfishing. Maintaining the 2002 harvest 
levels set by the emergency rule (67 FR 18117, April 15, 2002,) will 
serve to protect whiting from overharvest for the remainder of 2002. 
Accordingly, the AA is extending the expiration date of this emergency 
rule until the effective date of the 2003 management measures, not to 
exceed 180 days.

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

    Dated: October 1, 2002
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 02-25334 Filed 10-4-02; 8:45 am]
BILLING CODE 3510-22-S