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.

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 available at the NMFS Northwest Region website at http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and 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 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 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).

(2) Section IV NMFS Actions, B. Limited Entry Fishery, (3) Whiting is revised; and Section V Washington Coastal Tribal Fisheries, D. Pacific Whiting is 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° 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 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.