04-9844. Magnuson-Stevens Fishery Conservation and Management 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:

Final rule; 2004 groundfish fishery specifications; request for comments.

SUMMARY:

This final rule establishes the 2004 fishery specifications for 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). This Federal Register document also serves to announces that the whiting resource is estimated to be above the target rebuilding biomass and will no longer have an overfished species status, and amends the final rule implementing the specifications and management measures for the 2004 fishing year, which were published March 9, 2004. These specifications include the allowable 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. NMFS is specifically seeking comments on changes to the ABC in this final rule. These changes are described below in the section of the preamble titled ABC/OY Recommendations.

DATES:

Effective April 27, 2004, through December 31, 2004. Comments on the 2004 whiting ABC must be received by June 1, 2004.

ADDRESSES:

You may submit comments, identified by [031216314-01 and/or 0648-AR54], by any of the following methods:

• E-mail: [e-mail]: identified by [031216314-01 and/or 0648-AR54] in the subject line of the message.
• Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

• Fax: [phone].
• Mail: D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070; Robert Lohn, Administrator.

Copies of the final environmental impact statement (FEIS) for this action are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE. Ambassador Place, Portland, OR 97220, phone: [phone]. These documents are also available online at the Council's Web site at http://www.pcouncil.org. Copies of additional reports referred to in this document may also be obtained from the Council. Copies of the Record of Decision (ROD), final regulatory flexibility analysis (FRFA), and the Small Entity Compliance Guide are available from D. Robert Lohn, Northwest Regional Administrator, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT:

Becky Renko or Yvonne deReynier (Northwest Region, NMFS) 206-526-6150; or Svein Fougner (Southwest Region, NMFS) 310-980-4040.

SUPPLEMENTARY INFORMATION:

Electronic Access

This final rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.gpoaccess.gov/​fr/​index.html. Background information and documents are available at the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/​sustfsh/​gdfsh01.htm.

Background

The Pacific Coast Groundfish Fishery Management Plan (FMP) requires that fishery specifications be evaluated biennially or annually and revised as necessary, that OYs be specified for groundfish species or species groups that need protection, and that management measures designed to achieve the OYs be published in the Federal Register. Specifications include ABCs and harvest levels (OYs, harvest guidelines, allocations, or quotas). In anticipation of a new whiting stock assessment that would be available in early 2004 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 2004 meeting.

A proposed rulemaking to implement the 2004 specifications and management measures for the Pacific Coast groundfish fishery was published on January 8, 2004 (69 FR 1380). NMFS requested public comment on the proposed rule through February 8, 2004. During that comment period, NMFS received four letters of comment that were addressed in the preamble of the final rule published on March 9, 2004 (69 FR 11064). One comment, comment 9, which is not being repeated in the preamble discussion for this action, addressed the process for establishing a harvest level for whiting. For additional background information on the fishery, see the preamble of the proposed and final rules for the 2004 annual specifications and management measures.

Stock Status

In general, whiting is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) patterns and a relatively short life span when compared to other overfished groundfish species. In 1987, the whiting biomass was at a historical high level due to an exceptionally large number of fish that spawned in 1980 and 1984 (fished spawned during a particular year are referred to as year classes). As these large year classes of fish passed through the population and were replaced by moderate sized year classes, the stock declined. The whiting stock stabilized between 1995 and 1997, but then declined to its lowest level in 2001.

In 2002, a whiting stock assessment was prepared. It estimated the female spawning biomass to be less than 20 percent of the unfished biomass. As a result of the 2002 assessment, the whiting stock was believed to be below the overfished threshold in 2001 and was, therefore, declared overfished on April 15, 2002 (67 FR 18117). Since 2001, the whiting stock has increased substantially as a strong 1999 year class has matured and entered the spawning population.

In 2003, whiting was managed under the 40-10 harvest policy, which appeared to be adequate to achieve rebuilding. The 40-10 policy is intended to prevent species or stocks from becoming overfished. If the stock biomass is larger than the biomass needed to produce MSY, the OY may be set equal to or less than ABC. For further discussion see the preamble of the proposed rule for the 2003 specifications and management measures (68 FR 949, January 7, 2003). An age-structured assessment model was used to prepare a new coastwide stock assessment in 2004. This model was similar to the model used in the previous stock assessment in 2002. New data in this stock assessment included updated catch through 2003, recruitment indices from the juvenile survey in 2003, and the results of the 2003 U.S./Canada acoustic survey. The stock assessment was examined by a joint U.S./Canada Pacific Hake (Whiting) Stock Assessment Review (STAR) panel in early February of 2004.

The STAR panel considered the stock assessment to be complete and suitable for use by the Council and its advisory bodies for ABC projections. However, the amount of whiting that the hydroacoustic survey was able to measure relative to the total whiting in the surveyed area (survey catchability coefficient or q) was identified as a major source of uncertainty in the stock assessment. Therefore, two sets of ABC/OY projections, with different assumptions about the survey catchability, were brought forward for decision making. This range of projections was intended to represent a plausible range of the stock's status. The more optimistic or less risk averse model run assumed that q equaled 0.6, while the less optimistic or more risk averse model run assumed that q equaled 1.0. A catchability coefficient of 1.0 is the value that has been used in the previous assessments. The Council's Scientific and Statistical Committee (SSC) also reviewed the assessment.

As a result of the new whiting stock assessment, the estimated abundance of whiting has increased substantially since the last assessment. However, the pattern of stock growth is very similar to what has been estimated in past assessments. The stock was estimated to be 47 percent of its unfished biomass in 2003 (2.7 million mt of age 3+ fish) when a survey catchability coefficient of 1.0 was applied and at 51 percent (4.2 million mt of age 3+ fish) of its unfished biomass in 2003 when a survey catchability coefficient of 0.6 was applied. Under both scenarios, the whiting biomass in 2003 is estimated to be above the target rebuilding biomass. However, in the absence of a large year class after 1999, the stock is projected to decline again.

Whiting was declared overfished on April 15, 2002 (67 FR 18117) as a result of the 2002 stock assessment which estimated that the female spawning biomass was less than 20 percent of the unfished biomass. In retrospect, the abundance of the whiting stock in 2001, as estimated from the current stock assessment, is now believed to have been at 27 percent of its unfished biomass in 2001 when a survey catchability coefficient of 1.0 is applied, and at 31 percent of its unfished biomass in 2001 when a survey catchability coefficient of 0.6 was applied.

With the publication of this document, NMFS is announcing that the whiting stock is estimated to be above the target rebuilding biomass in 2003 and will no longer be considered an overfished stock. Consequently, the adoption of a whiting rebuilding plan under Amendment 16-4 to the FMP, scheduled to be completed by November 2004, may no longer be necessary.

During 2003, while whiting was under NMFS's overfished designation, an order was entered in Natural Resources Defense Council v. Evans, 290 F. Supp. 2d 1051, 1057 (N.D. Calif. 2003), requiring NMFS to approve or adopt a rebuilding plan for whiting by November 30, 2004 pursuant to 16 U.S.C. 1854(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS will move the Court to amend its order on the grounds that a rebuilding plan for whiting is no longer necessary because the stock is no longer in an overfished status.

U.S.-Canada Whiting Negotiations

Since 1977, the U.S. and Canada have periodically held negotiations to address whiting fishery management issues, particularly catch sharing between the two countries. Through 2003, the U.S. fisheries have been managed to take 80 percent of the OY, while the Canadian fisheries have been managed to take 30 percent of the U.S.-Canada coastwide harvest. In the fall of 2002, after the whiting stock had been declared overfished, international negotiations were resumed.

In February 2003, U.S.-Canada negotiations reached a tentative agreement detailing the conservation, research, and catch sharing of whiting. A new process for conducting stock assessments and managing whiting was developed and is described in a treaty which was signed by both countries on November 21, 2003. This treaty is currently awaiting ratification by the U.S. Senate and passage of implementing legislation by the U.S. Congress. Treaty provisions include the use of a default harvest rate of F₄₀% with a 40/10 adjustment. 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). The treaty's catch sharing plan provides 73.88 percent of the total catch OY to the U.S. fisheries and 26.12 percent to the Canadian fisheries. Although the international agreement and implementing legislation are not expected to be effective until 2005, the negotiators recommended that each country informally implement the agreed upon treaty provisions, to the extent possible, beginning in 2004.

ABC/OY Recommendations

At its September 2003 meeting, the Council considered a range of ABCs and OYs that were consistent with historical values and expected to encompass results of the upcoming 2004 assessment. The four ABC and OY options considered by the Council were: An ABC of 94,000 mt with an OY of 74,100 mt, which represents 50 percent of the 2003 ABC and OY; an ABC of 188,000 mt with an OY of 148,200 mt, which was the 2003 ABC and OY; an ABC of 282,000 mt with an OY of 222,300 mt, which is 50 percent greater than the 2003 ABC and OY; and an ABC of 325,000 mt with an OY of 250,000 mt, which was an intermediate value recommended by the Council.

The Council recommended a preferred OY of 250,000 mt to accommodate any biomass increase that could result from the 2004 stock assessment, while recognizing that incidental catch of widow rockfish could constrain harvest levels of whiting. Widow rockfish, an overfished species, is often caught with whiting. Because the 2004 widow rockfish OY is very low to allow for rebuilding, estimates of incidental widow rockfish catch in the whiting fishery suggested that widow OY might be exceeded if the whiting OY were not constrained. It was announced throughout the specification process that the ABC and OY for whiting would be implemented in a separate final rule from the rest of the groundfish specifications.

At its March 2004 meeting in Tacoma, Washington, the Council reviewed the results of the new stock assessment for whiting. The coastwide ABCs considered by the Council were 514,441 mt (q=1.0) and 780,758 (q=0.6). Both ABCs were based on an F_MSY harvest rate of F₄₀% which is consistent with the U.S./Canada treaty for whiting. F_MSY is the default harvest rate that the Council uses as a proxy for the fishing mortality rate.

Because the whiting biomass is estimated to be above 40 percent of its unfished biomass, the 40/10 adjustment was not applied. With the stock above the target rebuilding biomass, the OY could be set as high as the ABC. The SSC recommended that the Council use the decision table presented in the whiting stock assessment (Table 13) to evaluate the consequences of alternate OY options on the whiting biomass. This assessment is available from the Council (see ADDRESSES). In addition to the two OYs based on different values for the q, 0.6 and 1.0, the consequences of a constant harvest rate of 250,000 mt annually for the U.S. was also considered in the decision table.

The Council's groundfish management team (GMT) considered the 2004 OY alternatives in relation to the impacts of incidental catch of overfished species, particularly widow rockfish. In September 2003, when projecting the impacts of the whiting fishery on widow rockfish, the GMT applied an average bycatch rate for 1998-2002 for each sector. Based on this rate, it was projected that the whiting OY would need to be constrained to 120,000 mt as not to exceed the widow rockfish rebuilding OY.

At the March meeting, the 2003 whiting bycatch data were available. However, the GMT could not reach consensus on the best approach to calculating the widow bycatch projections. The influence of fishers' ability to reduce bycatch rates by changing fishing practices, as compared to the influence on bycatch rates due to the relationship between the two stocks and the frequency of widow rockfish interactions, are not well understood at this time. Therefore, the GMT presented two OYs based on alternative bycatch projections that fixed the widow rockfish take at 220 mt, to the Council. The first whiting OY was 260,343 mt, which was based on a weighted 4-year average with more weight being given to recent years. The second whiting OY was 205,782 mt, and was based on an equally weighted four year average. In addition, the GMT estimated the widow rockfish catch (211 mt) with a fixed OY of 250,000 mt, and with the application of a weighted 4-year average.

Following discussion and public testimony concerning the new 2004 stock assessment, the Council recommended adopting an ABC of 514,441 mt, based on the new assessment with model runs using q=1.0, and an OY of 250,000 mt. As explained above, the Council initially considered a range of ABCs that were expected to encompass the results of the new stock assessment. However, the 514,441 mt ABC based on the new assessment is greater than the range of ABC alternatives (based on the 2002 stock assessment) that were initially considered by the Council, analyzed in the EIS, and presented in the proposed rule.

Because it is the OY harvest level that determines the effects of the fisheries on the environment and not the ABC, there is no functional difference in environmental impacts between the high ABC of 325,000 mt and the ABC of 514,441 mt. The environmental impacts of the 250,000 mt OY, including impacts on overfished species, resulting from the whiting harvest specification were fully considered within the range of alternatives in the EIS and there are no additional environmental impacts on whiting or bycatch species over those already considered.

As in past years, the whiting fisheries are will be managed with near real-time data to achieve, but not exceed the OY. The Council recognized efforts by fishery participants to avoid bycatch of overfished species and asked that the industry continue to share information and avoid widow rockfish “hot spots”.

Economic Impact

The U.S. OY recommended by the Council represents a 68 percent increase from the 2003 whiting OY. When the OY was substantially reduced to allow for rebuilding of the stock, it was not economically feasible for some shoreside or at-sea processors who had historically participated in the fishery to remain in the fishery. The increased OY for 2004 may result in financial improvements and may likely encourage some fishers and processors to return to the fishery. In the short term, the increased OY is expected to have a substantial economic impact on harvesters and processors. It is also expected that the length of the whiting season will increase proportionately with the OY, thereby likely reducing some fishing pressure on already constrained non-whiting fisheries such as flatfish and DTS, in which whiting vessels also participate.

Sector Allocations

In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish in the Pacific Ocean. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes' usual and accustomed ocean fishing areas (described at 60 CFR 660.324).

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. A tribal allocation is subtracted from the species OY before limited entry and open access allocations are derived. The tribal whiting fishery is a separate fishery, and is not governed by the limited entry or open access regulations or allocations. To date only the Makah tribe has participated. It regulates, and in cooperation with NMFS, monitors this fishery so as not to exceed the tribal allocation.

The sliding scale methodology used to determine the treaty Indian share of whiting is the subject of ongoing litigation. In United States v. Washington, Subproceeding 96-2, the Court held that the 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. See 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.) (Order Granting Defendants' Motion to Supplement Record, July 17, 2002), and again in April 2003, id., Order Granting Federal Defendants' and Makah's Motions for Summary Judgment and Denying Plaintiffs' Motions for Summary Judgment, April 15, 2003. The latter ruling has been appealed to the Ninth Circuit, but no decision has been rendered as yet. At this time, NMFS remains under a Court order in Subproceeding 96-2 to continue use of the sliding scale methodology unless the Secretary finds just cause for its alteration or abandonment, the parties agree to a permissible alternative, or further order issues from the Court. Therefore, NMFS is obliged to continue to use the methodology unless one of the events identified by the Court occurs. Since NMFS finds no reason to change the methodology, it has been used to determine the 2004 tribal allocation.

Beginning in 1999, NMFS set the tribal allocation according to an abundance-based sliding scale allocation method, proposed by the Makah Tribe in 1998. See, 64 FR 27928, 27929 (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 with U.S. whiting OY, ranging from a low of 14 percent (or less) of the U.S. OY when OY levels are above 250,000 mt, to a high of 17.5 percent of the U.S. OY when the OY level is at or below 145,000 mt. For 2004, using the sliding scale allocation method the tribal allocation will be 32,500 mt. The Makah are the only Washington Coast tribe that requested a whiting allocation for 2004.

The 2004 non-tribal commercial OY for whiting is 215,500 mt. This is calculated by deducting the 32,500 mt tribal allocation and 2,000 mt for research catch and bycatch in non-groundfish fisheries from the 250,000 mt total catch OY. 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 comprised of vessels that harvest and process whiting. The mothership sector is comprised 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 comprised 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 (73,270 mt), motherships getting 24 percent (51,720 mt), and the shore-based sector getting 42 percent (90,510 mt).

All whiting caught in 2004 before the effective date of this action will be counted toward the new 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).

NMFS Actions

For the reasons stated here, NMFS is amending the 2004 annual specifications and management measures in the preamble of the final rule (69 FR 11064, March 9, 2004) with the following changes:

1. Tables 1a and 1b (69 FR 11074) are revised to include the Pacific whiting ABC and OYs and to correct footnote x/ to add the term “harvest guideline” to clarify that the black rockfish OY subdivisions between the States of Washington, Oregon and California.

2. Section IV NMFS Actions, B. Limited Entry Fishery, (3) Whiting (69 FR 11114) is revised; and Section V Washington Coastal Tribal Fisheries, E. Pacific Whiting (69 FR 11121) is revised.

B. Limited Entry Fishery

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(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 215,500 mt in 2004 (see 50 CFR 660.323(a)(4)), are as follows:

(i) Catcher/processor sector—73,270 mt (34 percent);

(ii) Mothership sector—51,720 mt (24 percent);

(iii) Shore-based sector—90,510 mt (42 percent). No more than 5 percent (4,526 mt) of the shore-based whiting allocation may be taken before the shore-based fishery begins north of 42° N. lat. on June 15, 2004.

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V. Washington Coastal Tribal Fisheries

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E. Pacific Whiting. The tribal allocation is 32,500 mt.

Classification

The final whiting specifications and management measures for 2004 are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act and are in accordance with 50 CFR parts 660, the regulations implementing the Pacific Coast groundfish FMP.

The Pacific Coast Groundfish FMP requires that fishery specifications be evaluated biennially or annually using the best scientific information available. A stock assessment for whiting was prepared in early 2004, using the most recent survey data. Because of the timing of the resource survey upon which the assessment is based, the stock assessment could not be completed and ready for use in the June-September management cycle when the rest of the groundfish specifications were set. The Council and NMFS decided it was best to delay the adoption of the 2004 ABC and OY in order to use the newest data, rather than use old data from the prior survey. Preliminary indications from catch and survey data were that the biomass had increased in recent years and the ABC and OY recommended for 2004 would be substantially higher than those in 2003. For the most socio-economic benefits to harvesters and communities relying on the harvest of whiting, it was particularly important to delay the ABC and OY adoption in order 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 to the Council in March.

The proposed rulemaking to implement the 2004 specifications and management measures, published on January 8, 2004 (69 FR 1380), addressed the delayed in adopting the whiting ABC and harvest specifications. NMFS requested public comment on the proposed rule through February 8, 2004. The final rule was published on March 9, 2004 (69 FR 11064). In this rule, NMFS responded to one public comment regarding the process for establishing a harvest level for Pacific whiting by stating that the specification would be adjusted following the Council's March meeting and announced in the Federal Register as a final rule. This action has been publicized widely through the Council process.

The proposed and final rules for the 2004 specifications and management measures contained a range of ABCs and OYs for whiting. The specifications announced here are within the scope of the proposed and final rules. Implementing these specifications as soon as possible is necessary because the 2004 whiting fishery is already underway and is operating under the lower 2003 OYs.

For the reasons described above, pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effectiveness, so that this final rule may become effective as soon as possible after the April 1, 2004, fishery start date.

The environmental impacts associated with the Pacific whiting harvest levels being adopted by this action were considered in the final environmental impact statement for the 2004 specification and management measures. Copies of the FEIS and the ROD are available from the Council (see ADDRESSES) Because the impacts of this action were already considered in the FEIS, it is categorically excluded under NAO 216-6 and NEPA from both further analysis and the requirements to prepare additional environmental documents.

The Council prepared an Initial Regulatory Flexibility Analysis and NMFS prepared a FRFA for the 2004 harvest specifications and management measures which included the impacts of this action. A summary of the FRFA analysis was published in the final rule on March 9, 2004 (69 FR 11064). A copy of the FRFA is available from NMFS Northwest Region (see ADDRESSES)

Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation with tribal officials during the Council process. This final rule has been determined to be not significant for purposes of Executive Order 12866.

Dated: April 27, 2004.

Rebecca Lent,

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