02-23383. Magnuson-Stevens Act Provisions; Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Groundfish Fishery Management Measures

AGENCY:

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

ACTION:

Emergency rule to set depth-based management measures for September-December 2002; request for comments.

SUMMARY:

This emergency rule sets new depth-based management measures that create a darkblotched rockfish conservation area (DBCA). The DBCA will limit the incidental catch of darkblotched rockfish, an overfished species, while allowing the limited entry trawl fishery access to healthy deepwater groundfish stocks (e.g., Dover sole, thornyhead, sablefish) and nearshore flatfish species (e.g., Dover sole (seasonally), petrale sole, arrowtooth flounder, English sole) outside the DBCA. This action is intended to allow the fisheries to access the optimum yields (OYs) of healthy groundfish stocks while protecting overfished darkblotched rockfish.

DATES:

Effective September 10, 2002, through March 12, 2003. Comments must be received no later than 5 p.m, local time (l.t.,) on October 15, 2002.

ADDRESSES:

Send comments to D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way N.E., Bldg. 1, Seattle, WA 98115-0070, or fax to 206-526-6736; or Rodney McInnis, Acting Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, or fax to 562-980-4047. Comments will not be accepted if submitted via e-mail or Internet. Information relevant to this emergency rule, which includes an environmental assessment/regulatory impact review (EA/RIR), is available for public review during business hours at the offices of the NMFS Northwest Regional Administrator and the NMFS Southwest Regional Administrator, or may be obtained from the Pacific Fishery Management Council (Pacific Council), at 7700 N.E. Ambassador Place, Portland, OR 97220, phone: [phone]. Additional reports referred to in this document may also be obtained from the Pacific Council.

FOR FURTHER INFORMATION CONTACT:

Carrie Nordeen or Yvonne deReynier (Northwest Region, NMFS); phone: [phone]; fax: [phone]; e-mail: [e-mail],, [e-mail] or Svein Fougner (Southwest Region, NMFS); phone: [phone]; fax: [phone]; and e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Access

This emergency rule also is accessibleavailable on the Internet at the Office of the Federal Register's website at http://www.access.gpo/​gov/​su docs/aces/aces140.html. Background information and documents are available at the NMFS Northwest Region website at http://www.nwr.noaa.gov/​ 1sustfsh/gdfsh01.htm and at the Pacific Council's website at http://www.pcouncil.org.

Background

The Pacific Coast Groundfish Fishery Management Plan (FMP) and its implementing regulations at 50 CFR part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California. Annual groundfish specifications and management measures are initially developed by the Pacific Council and are implemented by NMFS. The specifications and management measures for the current fishing year (January 1-December 31, 2002) were initially published in the Federal Register as an emergency rule for January 1-February 28, 2002 (67 FR 1540, January 11, 2002), and as a proposed rule for all of 2002 (67 FR 1555, January 11, 2002), then finalized effective March 1, 2002 (67 FR 10490, March 7, 2002). The final rule was subsequently amended at 67 FR 15338, April 1, 2002, at 67 FR 18117, April 15, 2002, at 67 FR 30604, May 7, 2002, at 67 FR 40870, June 14, 2002, at 67 FR 44778, July 5, 2002, at 67 FR 48571, July 25, 2002, at 67 FR 50835, August 6, 2002, and at 67 FR 55166, August, 28, 2002.

The following changes to groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Tribes and the States of Washington, Oregon, and California, at its June 17-21, 2002, meeting in Foster City, CA. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments will be made as necessary to allow achievement of or to avoid exceeding the 2002 OYs and allocations.

Management Measures to Protect Darkblotched Rockfish

Darkblotched rockfish, an overfished species, are typically encountered along the central Pacific Coast (Oregon and northern California) but may occur along the continental slope from Washington to central California. Both adult and juvenile darkblotched rockfish are associated with mud and rock habitats. Adults move to deeper water as they increase in size and age; they are typically observed resting on mud, near cobble and boulders and do not often rise above the ocean floor.

Darkblotched rockfish are harvested by several sectors of the groundfish fishery and have experienced higher than expected landings during the first four months of 2002. Due to its overfished status, darkblotched rockfish is being managed as an incidentally caught species and not as a targeted species in the 2002 Pacific Coast groundfish fishery. However, it is known to co-occur with several groundfish species that are directly targeted by the fishery. For example, Dover sole and petrale sole occupy areas and depths where darkblotched rockfish are found, primarily during summer months, and darkblotched rockfish catch tends to increase when Dover sole and petrale sole are targeted during these times. Several 2002 inseason adjustments to management measures have been made to minimize the incidental catch of darkblotched rockfish and allow the stock to rebuild.

Management measures in 2002, intended to keep the darkblotched rockfish catch within its OY, include small cumulative trip limits of darkblotched rockfish that accommodate incidental catch but discourage targeted catch. In addition, the 2002 management measures constrain northern DTS (Dover sole, thornyhead, sablefish) trawl fisheries during the November December period to reduce the incidental catch of darkblotched rockfish. Management measures also constrain flatfish fisheries limits during the summer months when participation in these fisheries is greatest and darkblotched rockfish are most likely to be encountered. Lower sablefish and Dover sole OYs in 2002 are also expected to reduce the incidental catch of darkblotched rockfish from the amount that was taken in 2001. On May 1, 2002, NMFS took further action to reduce minor slope rockfish trip limits between 40°10′ N. lat. and 36° N. lat. for both the trawl and fixed gear limited entry fleets.

At the June Pacific Council meeting, the best available science indicated that landings of darkblotched rockfish in 2002 were greater than initially projected. Coastwide commercial landings through June 8, 2002, were estimated to be between 73 mt and 98 mt which represents 56 percent to 75 percent of the darkblotched rockfish 130 mt landed catch OY (not including catch in the at-sea whiting sector). As of June 8, 2002, approximately 30 mt had been landed south of 40°10′ 40°10′ N. lat. Due to combined coastwide landed catch and estimated discard, the projected year-end catch of darkblotched rockfish under the current trip limit schedule would have exceeded the rebuilding OY of 168 mt by approximately 35-40 mt. To prevent the total harvest from exceeding the darkblotched rockfish OY, the Pacific Council recommended the following management measures: a trawl small footrope only requirement, reductions in trip limits for limited entry and exempted trawl, and area closures. These management measures were designed to limit the darkblotched rockfish catch to 160 mt, which is within the 2002 darkblotched rockfish OY of 168 mt. NMFS implemented these recommendations managing the fishery south of 40°10′ N. lat. on July 1, via inseason action at 67 FR 44778, July 5, 2002.

Emergency Rule Request from the Pacific Council

The management measures that the Pacific Council recommended at its June meeting for the July-August period were intended as short-term measures to immediately reduce incidental catch of darkblotched rockfish. At that time, the Pacific Council acknowledged that these measures would not reduce the incidental catch of darkblotched rockfish enough to allow fisheries for healthy, co-occurring stocks to remain open September-December 2002. In evaluating other potential management measures that might allow fisheries for healthy stocks to remain open while still protecting darkblotched rockfish, the Pacific Council discussed whether closing the area where darkblotched rockfish are typically found would adequately prevent the fisheries from exceeding that species' OY.

The Pacific Council and its advisory bodies reviewed historical data on the depth distribution of darkblotched rockfish to determine whether closing fisheries at those depths would still allow some fishing for healthy stocks. Upon reviewing the darkblotched rockfish depth distribution and the depth distribution of healthy, co-occurring stocks, the Pacific Council recommended allowing flatfish trawling inshore of approximately 100 fm (184 m) and offshore of approximately 250 fm (461 m) to allow vessels to fish for nearshore flatfish and deepwater species occurring inside and outside of the primary darkblotched rockfish depth range. Flatfish species that would likely be taken inside of 100 fm (184 m) include English sole, Dover sole (seasonally), petrale sole, and arrowtooth flounder. Deepwater species that would likely be taken outside of 250 fm (461 m) include Dover sole, longspine thornyhead, shortspine thornyhead, and sablefish.

The only depth-based management measure currently used in the groundfish fishery is a 20 fm (37 m) contour off California south of 40°10' N. lat. to control fishing inside and outside of that contour by commercial and recreational hook-and-line fisheries. Under the FMP, any new management measure must be discussed within a two-meeting process, to allow the public an opportunity to consider and comment upon the potential new measure. Within these constraints, closure of the DBCA while allowing trawling in areas inside and outside the DBCA could not have been permitted until October 1, 2002, following the Pacific Council's September meeting. Therefore, all trawl fisheries north of 40°10' N. lat. would have to be closed during September if the Pacific Council had to follow the two-meeting process to implement new depth-based restrictions. At its June meeting, the Pacific Council decided that the economic need to keep the groundfish fishery open through September was sufficiently great to ask NMFS to implement an emergency rule to allow depth-based trawl fishery management north of 40°10' N. lat. during September. The trawl fleet has been severely restricted in recent years and this emergency rule will establish a depth-based area that will be used to allow limited entry trawl access to healthy groundfish stocks and the associated revenue otherwise forgone while protecting darkblotched rockfish.

The Pacific Council realized there was uncertainty whether the emergency rule could be approved and implemented by September 1, so they also recommended that if the emergency rule was not possible, the bottom trawl groundfish fishery north of 40°10′ N. lat. should be closed on September 1. Therefore, NMFS announced trip limit adjustments at 67 FR 44778 (July 5, 2002) including a September 1 closure of all bottom trawling north of 40°10′ N. lat. Thus, this emergency rule modifies the September 1 bottom trawl closure.

Following the Pacific Council's June meeting, NMFS drafted an EA/RIR to evaluate the effects of this emergency rule. With that analysis, NMFS estimated the total catch of darkblotched rockfish associated with the Pacific Council's September implementation request to be approximately 96 percent-99 percent of the OY. This is due, in part, to the estimated bycatch of darkblotched rockfish that would be caught inside of 100 fathoms (184 m) with nearshore flatfish during September and October. Given the uncertainties in estimating the catch of darkblotched rockfish, particularly inside 100 fathoms (184 m), NMFS believes a more conservative action than that proposed by the Pacific Council is necessary to assure the darkblotched rockfish OY is not exceeded. Therefore, NMFS will continue to prohibit limited entry trawl fishing inside approximately 100 fathoms (184 m) during September, but re-open that area during October-December with reduced flatfish trip limits during October. Limited entry trawl access outside approximately 250 fathoms (461 m) would be re-opened for September-December. This modification of the Pacific Council's request is expected to reduce the incidental catch of darkblotched rockfish with nearshore flatfish during the months of September and October and provide greater assurance that neither the darkblotched rockfish OY, nor the OY of any other groundfish species will be exceeded. Furthermore, NMFS determined that allowing fishing inshore of approximately 100 fm (184 m), during October- December, and offshore of 250 fm (461 m), during September-December, would allow the trawl fishery access to healthy stocks whose 2002 landings were well below their OYs. NMFS also determined that some of the flatfish limits recommended by the Pacific Council for the September through December periods were too liberal to adequately prevent the overharvest of overfished species. With this emergency rule, NMFS has set trip limits for groundfish, including flatfish, at levels that are expected to protect overfished species from overharvest. Many of the species that would be caught under these management measures, particularly flatfish species, are commonly only caught by trawl gear. Therefore, if the scheduled closure of all bottom trawling north of 40°10′ N. latitude were to be in effect for September, notable harvestable quantities of healthy stocks would be left unharvested. In addition, NMFS is correcting limited entry fixed gear and open access limits for Pacific whiting during the September-December periods to reflect the closure of Pacific whiting announced in the July inseason action (67 FR 44778, July 5, 2002).

The goal of this rule is to prohibit trawling within the DBCA, between approximately 100 fm (184 m) and 250 fm (461 m), in order to keep the fishery out of the area where darkblotched rockfish are commonly encountered. However, it is extremely difficult to enforce large area restrictions delineated by depth contours, so the state agencies of Washington, Oregon, and California calculated lat./long. coordinates for straight-line borders approximating depth contours to create a closed area. This emergency rule designates the waters between approximately 100 fm (184 m) and approximately 250 fm (461 m) as the DBCA.

NMFS Actions

For the reasons stated herein, NMFS modified the Pacific Council's recommendations with a more conservative action providing greater assurance that neither the darkblotched rockfish OY, nor the OY of any other groundfish species will be exceeded and hereby announces the following changes to the 2002 specifications and management measures (67 FR 10490, March 7, 2002, as amended at 67 FR 15338, April 1, 2002, 67 FR 18117, April 15, 2002, 67 FR 30604, May 1, 2002, 67 FR 40870, June 14, 2002, 67 FR 44778, July 5, 2002, 67 FR 48571, July 25, 2002, 67 FR 50835, August 6, 2002, and 67 FR 55166, August 28, 2002) to read as follows:

1. On page 10514, in section IV, under A. General Definitions and Provisions, at the end of the last paragraph, the following is to be added:

(22) Darkblotched Rockfish Conservation Area. There is hereby established a Darkblotched Rockfish Conservation Area (DBCA). The DBCA extends south from the U.S./Canada border (48°30′ N. lat.) to 40°10′ N. lat. The DBCA is defined along its eastern boundary by straight lines connecting all of the following points in the order stated:

48°23′ N. lat., 125°60′ W. long.;

48°13′ N. lat., 125°63′ W. long.;

47°95′ N. lat., 125°50′ W. long.;

48°33′ N. lat., 125°30′ W. long.;

48°33′ N. lat., 125°05′ W. long.;

48°38′ N. lat., 124°83′ W. long.;

48°28′ N. lat., 124°94′ W. long.;

48°10′ N. lat., 125°00′ W. long.;

48°15′ N. lat., 125°30′ W. long.;

48°10′ N. lat., 125°30′ W. long.;

47°98′ N. lat., 125°27′ W. long.;

47°82′ N. lat., 125°05′ W. long.;

47°70′ N. lat., 125°08′ W. long.;

47°52′ N. lat., 124°90′ W. long.;

47°40′ N. lat., 124°77′ W. long.;

47°31′ N. lat., 124°75′ W. long.;

47°14′ N. lat., 124°93′ W. long.;

47°01′ N. lat., 124°91′ W. long.;

47°02′ N. lat., 124°98′ W. long.;

46°95′ N. lat., 124°91′ W. long.;

47°00′ N. lat., 124°82′ W. long.;

46°90′ N. lat., 124°80′ W. long.;

46°91′ N. lat., 124°88′ W. long.;

46°69′ N. lat., 124°72′ W. long.;

46°58′ N. lat., 124°48′ W. long.;

46°48′ N. lat., 124°50′ W. long.;

46°33′ N. lat., 124°61′ W. long.;

46°30′ N. lat., 124°63′ W. long.;

46°28′ N. lat., 124°59′ W. long.;

46°28′ N. lat., 124°38′ W. long.;

46°27′ N. lat., 124°33′ W. long.;

46°20′ N. lat., 124°58′ W. long.;

46°18′ N. lat., 124°65′ W. long.;

46°15′ N. lat., 124°65′ W. long.;

46°02′ N. lat., 124°64′ W. long.;

45°95′ N. lat., 124°61′ W. long.;

45°90′ N. lat., 124°67′ W. long.;

45°79′ N. lat., 124°59′ W. long.;

45°70′ N. lat., 124°47′ W. long.;

45°57′ N. lat., 124°40′ W. long.;

45°45′ N. lat., 124°36′ W. long.;

45°29′ N. lat., 124°30′ W. long.;

44°99′ N. lat., 124°32′ W. long.;

44°82′ N. lat., 124°50′ W. long.;

44°76′ N. lat., 124°56′ W. long.;

44°55′ N. lat., 124°61′ W. long.;

44°47′ N. lat., 124°75′ W. long.;

44°22′ N. lat., 124°94′ W. long.;

43°94′ N. lat., 124°93′ W. long.;

43°94′ N. lat., 124°58′ W. long.;

43°71′ N. lat., 124°54′ W. long.;

43°52′ N. lat., 124°57′ W. long.;

43°29′ N. lat., 124°69′ W. long.;

43°12′ N. lat., 124°69′ W. long.;

43°06′ N. lat., 124°74′ W. long.;

43°07′ N. lat., 124°85′ W. long.;

42°93′ N. lat., 124°88′ W. long.;

42°90′ N. lat., 124°79′ W. long.;

42°73′ N. lat., 124°71′ W. long.;

42°64′ N. lat., 124°69′ W. long.;

42°55′ N. lat., 124°71′ W. long.;

42°53′ N. lat., 124°70′ W. long.;

42°50′ N. lat., 124°71′ W. long.;

42°47′ N. lat., 124°78′ W. long.;

42°42′ N. lat., 124°73′ W. long.;

42°32′ N. lat., 124°63′ W. long.;

42°27′ N. lat., 124°60′ W. long.;

42°09′ N. lat., 124°58′ W. long.;

42°00′ N. lat., 124°59′ W. long.;

42°00′ N. lat., 124°58′ W. long.;

41°78′ N. lat., 124°46′ W. long.;

41°55′ N. lat., 124°48′ W. long.;

41°17′ N. lat., 124°34′ W. long.;

40°86′ N. lat., 124°39′ W. long.;

40°68′ N. lat., 124°51′ W. long.;

40°60′ N. lat., 124°62′ W. long.;

40°54′ N. lat., 124°64′ W. long.;

40°39′ N. lat., 124°53′ W. long.;

40°40′ N. lat., 124°47′ W. long.;

40°37′ N. lat., 124°40′ W. long.;

40°35′ N. lat., 124°46′ W. long.;

40°31′ N. lat., 124°43′ W. long.;

40°32′ N. lat., 124°38′ W. long.;

40°25′ N. lat., 124°43′ W. long.;

40°28′ N. lat., 124°57′ W. long.; and

40°17′ N. lat., 124°35′ W. long.

The DBCA is defined along its western boundary by straight lines connecting all of the following points in the order stated:

48°25′ N. lat., 125°71′ W. long.;

48°22′ N. lat., 125°65′ W. long.;

48°14′ N. lat., 125°75′ W. long.;

48°10′ N. lat., 125°78′ W. long.;

48°06′ N. lat., 125°62′ W. long.;

48°03′ N. lat., 125°67′ W. long.;

47°95′ N. lat., 125°62′ W. long.;

47°93′ N. lat., 125°48′ W. long.;

47°97′ N. lat., 125°42′ W. long.;

48°01′ N. lat., 125°41′ W. long.;

48°06′ N. lat., 125°35′ W. long.;

48°03′ N. lat., 125°33′ W. long.;

48°00′ N. lat., 125°35′ W. long.;

47°97′ N. lat., 125°33′ W. long.;

47°97′ N. lat., 125°30′ W. long.;

47°87′ N. lat., 125°28′ W. long.;

47°82′ N. lat., 125°18′ W. long.;

47°77′ N. lat., 125°10′ W. long.;

47°74′ N. lat., 125°13′ W. long.;

47°70′ N. lat., 125°10′ W. long.;

47°63′ N. lat., 125°12′ W. long.;

47°50′ N. lat., 125°00′ W. long.;

47°47′ N. lat., 124°98′ W. long.;

47°38′ N. lat., 124°85′ W. long.;

47°28′ N. lat., 124°88′ W. long.;

47°25′ N. lat., 125°00′ W. long.;

47°13′ N. lat., 124°98′ W. long.;

47°02′ N. lat., 125°00′ W. long.;

46°92′ N. lat., 125°03′ W. long.;

46°85′ N. lat., 124°95′ W. long.;

46°68′ N. lat., 124°85′ W. long.;

46°57′ N. lat., 124°63′ W. long.;

46°51′ N. lat., 124°68′ W. long.;

46°55′ N. lat., 124°53′ W. long.;

46°48′ N. lat., 124°53′ W. long.;

46°33′ N. lat., 124°65′ W. long.;

46°27′ N. lat., 124°62′ W. long.;

46°26′ N. lat., 124°45′ W. long.;

46°22′ N. lat., 124°63′ W. long.;

46°22′ N. lat., 124°65′ W. long.;

46°18′ N. lat., 124°70′ W. long.;

46°10′ N. lat., 124°70′ W. long.;

46°05′ N. lat., 124°84′ W. long.;

45°95′ N. lat., 124°76′ W. long.;

45°72′ N. lat., 124°77′ W. long.;

45°60′ N. lat., 124°76′ W. long.;

45°60′ N. lat., 124°71′ W. long.;

45°41′ N. lat., 124°64′ W. long.;

45°19′ N. lat., 124°66′ W. long.;

44°97′ N. lat., 124°62′ W. long.;

44°74′ N. lat., 124°85′ W. long.;

44°54′ N. lat., 124°90′ W. long.;

44°39′ N. lat., 124°83′ W. long.;

44°22′ N. lat., 124°98′ W. long.;

43°97′ N. lat., 124°97′ W. long.;

43°84′ N. lat., 124°89′ W. long.;

43°83′ N. lat., 124°73′ W. long.;

43°71′ N. lat., 124°69′ W. long.;

43°40′ N. lat., 124°71′ W. long.;

43°33′ N. lat., 124°75′ W. long.;

43°33′ N. lat., 124°88′ W. long.;

43°29′ N. lat., 124°88′ W. long.;

42°82′ N. lat., 124°92′ W. long.;

42°78′ N. lat., 124°89′ W. long.;

42°73′ N. lat., 124°86′ W. long.;

42°76′ N. lat., 124°82′ W. long.;

42°73′ N. lat., 124°77′ W. long.;

42°65′ N. lat., 124°72′ W. long.;

42°58′ N. lat., 124°78′ W. long.;

42°52′ N. lat., 124°78′ W. long.;

42°52′ N. lat., 124°74′ W. long.;

42°49′ N. lat., 124°78′ W. long.;

42°47′ N. lat., 124°83′ W. long.;

42°44′ N. lat., 124°79′ W. long.;

42°33′ N. lat., 124°72′ W. long.;

42°23′ N. lat., 124°67′ W. long.;

42°09′ N. lat., 124°65′ W. long.;

42°00′ N. lat., 124°63′ W. long.;

41°99′ N. lat., 124°63′ W. long.;

41°80′ N. lat., 124°53′ W. long.;

41°36′ N. lat., 124°51′ W. long.;

41°12′ N. lat., 124°42′ W. long.;

40°96′ N. lat., 124°50′ W. long.;

40°68′ N. lat., 124°55′ W. long.;

40°56′ N. lat., 124°71′ W. long.;

40°38′ N. lat., 124°53′ W. long.;

40°28′ N. lat., 124°53′ W. long.;

40°31′ N. lat., 124°84′ W. long.; and

40°17′ N. lat., 124°47′ W. long.

The DBCA is closed to limited entry groundfish trawl fishing. Fishing with limited entry groundfish trawl gear is prohibited within the DBCA. It is unlawful to take and retain, possess, or land groundfish taken with limited entry groundfish trawl gear in the DBCA. Limited entry groundfish trawl vessels may transit through the DBCA, with or without groundfish on board, provided all groundfish trawl gear is stowed either: (1) below deck; or (2) if the gear cannot readily be moved, in a secured and covered manner, detached from all towing lines, so that it is rendered unusable for fishing. For the month of September 2002, all prohibitions that apply to the DBCA also apply to all waters inshore of the DBCA. These restrictions do not apply to Pacific whiting vessels using mid-water trawl gear to fish for their sector's primary whiting season allocation, as defined at 660.323(a)(3).

* * * * *

2. On pages 10517 and 10518, in section IV, under B. Limited Entry Fishery, at the end of paragraph (1), Table 3 and Table 4 are revised to read as follows:

B. Limited Entry Fishery

(1) * * *

* * * * *

3. On page 10520, in section IV, under C. Trip Limits in the Open Access Fishery, at the end of paragraph (1), Table 5 is revised to read as follows:

C. Trip Limits in the Open Access Fishery

(1) * * *

Classification

These changes to groundfish management measures are issued under the authority of, and are in accordance with, the Magnuson-Stevens Act (16 USC 1855 (c)). Fishery Conservation and Management Act and are in accordance with 50 CFR part 660, the regulations implementing the Pacific Coast Groundfish FMP.

The Assistant Administrator (AA) for Fisheries, NMFS, finds good cause to waive the requirement to provide prior notice and opportunity for public comment on this action pursuant to 5 U.S.C. 553(b)(B), because providing prior notice and opportunity for comment would be impracticable. It would be impracticable because the information upon which this action is based was not available until the June 2002 Council meeting, providing insufficient time for a proposed and final rule with the opportunity for public comment, while allowing fisheries access to healthy stocks. Absent this rule, the limited entry trawl fisheries north of 40°10′ N. lat. would remain closed on, and affording prior notice and opportunity for public comment would impede the agency's function of providing fisheries with access to the allowable harvest of healthy stocks while protecting overfished stocks from depletion and overfishing. Delaying implementation of these depth-based management measures would prevent the trawl fisheries north of 40°110′ N. lat. from having access to allowable harvest levels of healthy stocks of groundfish, many of which are not taken with gear other than trawl gear. In addition to preventing trawl fisheries from having access to these species, the shorebased processing industry that relies on trawl groundfish deliveries would also lose access to these healthy stocks. Delaying implementation of these depth-based management measures would result in the continued closure of all trawl fisheries north of 40°10′ N. lat., with notable adverse economic effects on the trawl fleet and the shore-based processing industry. The AA is also waiving the 30-day delay in effectiveness requirement under 5 U.S.C. 553(d)(1) because this rule relieves a restriction.

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

NMFS issued Biological Opinions (BOs) under the ESAEndangered Species Act on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 195, 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 spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal, Oregon coastal), chum salmon (Hood Canal summer, 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.

During the 2000 Pacific whiting season, the whiting fisheries exceeded the chinook bycatch amount specified in the Pacific whiting fisheryfishery's Biological Opinion's (whiting BO's) (December 19, 1999) incidental catch statement estimate of 11,000 fish, by approximately 500 fish. In the 2001 whiting season, however, the whiting fishery's chinook bycatch was about 7,000 fish, which approximates the long--term average. After reviewing data from, and management of, the 2000 and 2001 whiting fisheries (including industry bycatch minimization measures), the status of the affected listed chinook, environmental baseline information, and the incidental catch statement from the 1999 whiting BO, NMFS determined that a re-initiation of the 1999 whiting BO was not required. 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. This action is within the scope of these consultations.

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior public notice and comment.

Dated: September 10, 2002.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.