Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures, 26325-26339 [E8-10382]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 91 (Friday, May 9, 2008)]
[Rules and Regulations]
[Pages 26325-26339]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10382]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 080408542-8615-01]
RIN 0648-AW63


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Biennial Specifications and 
Management Measures

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

ACTION: Final rule.

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SUMMARY: This final rule establishes the 2008 fishery specifications 
for Pacific 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. This document also 
corrects Table 2a, which inadvertently omitted a listing in the 
December 29, 2006 document.

DATES: Effective May 9, 2008.

ADDRESSES: Although there is no formal comment period, comments and 
suggestions on this rulemaking are welcome and should be sent 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 facsimile (fax) to 206-526-6736.

FOR FURTHER INFORMATION CONTACT: Becky Renko (Northwest Region, NMFS) 
206-526-6110.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This final rule is accessible via the Internet at the Office of the 
Federal Register's Website at https://www.gpoaccess.gov/fr/.
    Background information and documents are available at the NMFS 
Northwest Region Web site at https://www.nwr.noaa.gov/Groundfish-
Halibut/Groundfish-Fishery-Management/index.cfm.

Background

    A proposed rulemaking to implement the 2007-2008 specifications and 
management measures for the Pacific Coast groundfish fishery was 
published on September 29, 2006 (71 FR 57764) and was followed by a 
final rule on December 29, 2006 (71 FR 78638). These specifications and 
management measures were codified in the CFR (50 CFR part 660, subpart 
G). The regulations were subsequently amended by correcting amendments 
published on March 20, 2007 (72 FR 13043) and September 18, 2007 (72 FR 
53165). A final rule, published on April 9, 2007 (72 FR 19390), 
established the 2007 Pacific whiting harvest specifications Inseason 
measures to revise management measures were published on July 5, 2007 
(72 FR 36617), August 3, 2007 (72 FR 43193), October 4, 2007 (72 FR 
56664), December 4, 2007 (72 FR 68097) and December 18, 2007 (72 FR 
71583).

[[Page 26326]]

    In November 2003, the U.S. and Canada signed an agreement regarding 
the conservation, research, and catch sharing of Pacific whiting. In 
that agreement, the U.S. and Canadian governments agreed upon a Pacific 
whiting catch sharing arrangement that provided 73.88 percent of the 
total catch OY to U.S. fisheries and 26.12 percent to Canadian 
fisheries. At this time, both countries are taking steps to fully 
implement the agreement. Until this occurs, the negotiators recommended 
that each country apply the agreed upon provisions to their respective 
fisheries. The Agreement is expected to become effective in 2008.
    Consistent with the U.S.-Canada agreement, NMFS, at the 
recommendation of the Council, adopted a range for OYs and ABCs for 
Pacific whiting in the 2007-2008 specifications, published on December 
29, 2006. For 2008, the Council recommended and NMFS adopts in this 
final rule ABC and OY values that are based on a new stock assessment. 
The impacts are consistent with the scope of impacts considered in the 
FEIS for the 2007 and 2008 management measures.

Pacific Whiting Stock Status

    In general, Pacific whiting is a very productive species with 
highly variable recruitment (the biomass of fish that mature and enter 
the fishery each year) and a relatively short life span when compared 
to most other groundfish species. In 1987, the Pacific whiting biomass 
was at a historically high level due to an exceptionally large number 
of fish spawned in 1980 and 1984 (fish spawned during a particular year 
are referred to as a year class). As these large year classes of fish 
passed through the population and were replaced by moderate sized year 
classes, the stock declined. The Pacific whiting stock stabilized 
between 1995 and 1997, but then declined to its lowest level in 2001. 
After 2001, the Pacific whiting biomass increased substantially as a 
strong 1999 year class matured and entered the spawning population. The 
spawning biomass is expected to increase in the near future because of 
a moderately strong 2005 year class. However, the strength of the 2005 
recruitment is still very uncertain.
    The joint U.S.-Canada Stock Assessment Review (STAR) panel met 
February 11-14, 2008, in Seattle, Washington to review the following 
three draft stock assessment documents on Pacific whiting: A Stock 
Assessment of Pacific Hake (whiting) in U.S. and Canadian Waters in 
2008 by Helser et al.; An Assessment and Management Advice for Pacific 
Hake in U.S. and Canadian Waters in 2008 by Steven Martell; and A 
Virtual Population Analysis by Alan Sinclair and Chris Grandin. The 
primary differences among the three assessments involved are 
assumptions regarding survey selectivity and catchability, stock 
productivity, and the reliability of historical data, as well as the 
treatment of ageing error and the aggregation and weighting of data 
used in the models. After consideration of all three stock assessments 
by the Council's STAR Panel, the ``base model'' presented by Helser et 
al. was chosen as the preferred stock assessment model. The STAR Panel 
recommended the base model because it provided a more flexible platform 
for evaluating assumptions about the stock and it made better use of 
the available data.
    The 2008 base model is similar to that used in the 2007 assessment, 
except that the 2008 base model estimated the natural mortality rate of 
older fish; used the Bayseian priors to estimate the value of ``h'', or 
the stock-recruitment steepness (a proportional measure of expected 
recruitment relative to the number of adult fish)which serve to 
constrain the range within which the estimate will fall; accounted for 
the value of ``q'', which is known as the ageing error, or the acoustic 
survey catchability coefficient which, along with age-specific 
selectivity, defines the proportion of Pacific whiting biomass that the 
hydroacoustic survey is able to measure relative to the total amount of 
Pacific whiting in the surveyed area; and, eliminated the use of the 
pre-recruit survey data. In the previous assessments, the value of q 
was identified as a major source of uncertainty. The uncertainty in 
estimating the value of q is largely driven by conflicting signals from 
the acoustical survey biomass time series and age compositions. Each 
year from 2003 to 2007, two stock assessment models were presented with 
different values for q with each being assumed to have been equally 
likely. For 2008, the base model integrated uncertainty regarding all 
estimated parameters. The base model forecasts a positive trajectory 
for Pacific whiting indicating that the 1999 year-class is still 
available to the fishery and a reasonably strong 2005 year-class has 
shown up both in the fishery and the NMFS survey.
    The Pacific whiting stock biomass is estimated to be approximately 
42.6 percent (based on the 50th percentile of estimated probability 
distribution for depletion level) of its unfished biomass in 2008. The 
2008 assessment estimated the stock biomass to be lower and the 
depletion level to be higher than in the 2007 assessment because the 
current assessment freely estimated the value for q, and because an 
age-reading error matrix was used that resulted in a lower estimate of 
the unfished biomass and increased estimate of the size of the 1999 
year class. The results of the new 2008 base model indicate that 
spawning stock biomass for the most recent years was generally lower 
than had been estimated in the 2007 assessment, but is greater relative 
to the estimate of unfished biomass.
    At the Council's March 2008 meeting the Scientific and Statistical 
Committee (SSC) reviewed the assessments and endorsed the use of the 
2008 base model and the associated decision table for management 
purposes. Although the SSC endorsed the base model for management 
purposes, concerns were expressed about estimating natural mortality 
and selectivity for the oldest ages and whether the data used to 
estimate the value of q were informative enough to rely only on the 
point estimate from the base model for management decisions. In 
addition, the SSC noted that there was considerable uncertainty 
associated with stock size estimates given that the 2005 recruitment 
has not been sampled adequately to confirm its strength, and that the 
three assessments presented to the STAR Panel differ in their 
predictions. The SSC also noted that the population dynamics of Pacific 
whiting may not match the default harvest policy of F40% specified in 
the provisions of the U.S.-Canada agreement. 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 long-term unfished conditions. 
The selection of the F40% value was based on an analysis of stock and 
recruitment data for other whiting (hake) species. However, because 
long-term application of the current harvest rate of F40% would be 
expected to drive the Pacific whiting stock well below the biomass 
target, the SSC recommended that further work be done on the 
development of a more suitable control rule. Despite the identified 
concerns, the SSC concluded that none of the concerns warranted 
changing the recommendations of the STAR Panel.

ABC/OY Recommendations

    The range of U.S. ABCs and OYs analyzed in the FEIS for the 2007 
and 2008 specifications and management measures included: A low ABC of 
244,425 mt and a high ABC of 733,275 mt (50 percent and 150 percent, 
respectively, of the 2006 U.S. ABC of 488,850); and a low OY of 134,534 
mt

[[Page 26327]]

and a high OY of 403,604 mt (50 percent and 150 percent, respectively, 
of the 2005/2006 U.S. OY of 269,069). These broad ranges in Pacific 
whiting harvest levels were analyzed in order to assess the potential 
range of the effects of the Pacific whiting fishery on incidentally-
caught overfished species and the economic effects to coastal 
communities.
    At its March 10-14, 2008, meeting in Sacramento, California the 
Council reviewed the results of the new Pacific whiting stock 
assessments and recommended adopting a U.S.-Canada coastwide ABC of 
400,000 mt with a corresponding U.S. ABC of 295,520 mt. The coastwide 
ABC is below the risk averse ABC of 414,000 mt projected from the base 
model and recommended by the SSC. The range of U.S.-Canada coastwide OY 
values considered by the Council included: 546,297 mt, which is the 
highest harvest analyzed within the FEIS for 2007 and 2008 
specifications and management measures; 400,000 mt, which is an 
intermediate value based on a constant catch level; 328,358 mt which is 
the 2007 status quo value; 300,000 mt, which is an intermediate value 
based on a constant catch level; 259,775 mt, which is the amount 
projected to be harvested with a widow bycatch limit of 275 mt; and 
250,000 mt, which is the most conservative value in the stock 
assessment projections. Following discussion and public testimony, the 
Council recommended adopting a U.S.-Canada coastwide OY of 364,842 mt 
with a corresponding U.S. OY of 269,545 mt. The U.S. OY is similar to 
the 2005 and 2006 U.S. OYs.
    Risk factors identified by the SSC concerning the fishery were 
cause for concern such that a more risk averse OY was recommended by 
the Council. The Council indicated that a precautionary approach was 
needed to account for both assessment and management uncertainty. The 
Council's recommendation also took into consideration the very limited 
amounts of canary, darkblotched and widow rockfish (bycatch limit 
species) available to be taken incidentally in the Pacific whiting 
fishery. With a U.S. OY of 269,545 mt, the industry would need to 
continue to avoid the incidental catch of bycatch limit species to 
fully utilize the OY. The Council indicated that the expectation of the 
Pacific whiting OY to be fully utilized was near the upper end of what 
would be expected given the understanding of the catch of bycatch limit 
species.
    It is unknown exactly how much risk is involved with the use of the 
current assessments and harvest control rule with a species such as 
Pacific whiting. When coupled with the observation that the stock 
biomass has been in decline since 2003 while ABC has increased 
substantially over the same period, the best available information 
suggests there may be cause for concern if the full ABC were harvested. 
The Council's OY recommendation was consistent with the concerns 
expressed by the SSC.

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 50 CFR 
660.324).
    The Pacific Coast Indian treaty fishing rights, described at 50 CFR 
660.385, allow for the allocation of fish to the tribes through the 
specification and management measures 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 in the fishery. It regulates, and in cooperation with 
NMFS, monitors this fishery so as not to exceed the tribal allocation.
    Beginning in 1999, NMFS set the tribal allocation according to an 
abundance-based sliding scale method, proposed by the Makah Tribe in 
1998. (See 64 FR 27928, 27929 (May 29, 1999); 65 FR 221, 247 (January 
4, 2000); and 66 FR 2338, 2370 (January 11, 2001)). Details on the 
abundance-based sliding scale allocation method and related litigation 
are discussed in the preamble to the proposed rule (69 FR 56570; 
September 21, 2004) and are not repeated here. On December 28, 2004, 
the Ninth Circuit Court of Appeals upheld the sliding scale approach in 
Midwater Trawler Cooperative v. Daley, 393 F. 3d 994 (9th Cir. 2004). 
Under the sliding scale allocation method, the tribal allocation varies 
with U.S. Pacific whiting OY, ranging from 14 percent (or less) of the 
U.S. OY when OY levels are above 250,000 mt, to 17.5 percent of the 
U.S. OY when the OY level is at or below 145,000 mt. For 2008, using 
the sliding scale allocation method, the tribal allocation will be 
35,000 mt. The Makah are the only Washington Coast tribe that requested 
a Pacific whiting allocation for 2008.
    The 2008 commercial OY (non-tribal) for Pacific whiting is 232,545 
mt. This is calculated by deducting the 35,000-mt tribal allocation and 
2,000-mt for research catch and bycatch in non-groundfish fisheries 
from the 269,545 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 Pacific 
whiting fishery.
    The catcher/processor sector is comprised of vessels that harvest 
and process Pacific whiting. The mothership sector is comprised of 
catcher vessels that harvest Pacific whiting for delivery to 
motherships. Motherships are vessels that process, but do not harvest, 
Pacific whiting. The shoreside sector is comprised of vessels that 
harvest Pacific whiting for delivery to shoreside processors. Each 
sector receives a portion of the commercial OY in accordance with the 
regulations at 50 CFR 660.323(a)(4). For 2008, the catcher/processors 
receive 34 percent (79,065 mt), motherships receive 24 percent (55,811 
mt), and the shore-based sector receives 42 percent (97,669 mt) of the 
total catch OY.

Correction

    An omission was identified in Table 2a, which was published in the 
final rule of the 2007-2008 harvest specifications (December 29, 2006, 
71 FR 78638). The ABC value for darkblotched rockfish in Table 2a was 
inadvertently left out of the table, but identified in the associated 
footnote to the table. The ABC value of 487 mt has been inserted into 
the table. The 2007 OY value for darkblotched rockfish in Table 1a 
inadvertently carried over into Table 2a for 2008. The associated 
footnote contained the correct OY value of 330 mt. Therefore Table 2a 
has been revised to include the OY value of 330 mt for darkblotched 
rockfish. Table 2a in the Proposed Rule also contained these errors, 
but the preamble to the Proposed Rule that explained and summarized the 
rebuilding plan for darkblotched rockfish clearly stated the correct 
ABC and OY for 2008 for darkblotched rockfish (September 29, 2006, 71 
FR 57764, 57780).

Classification

    The final Pacific whiting specifications and management measures 
for 2008 are issued under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and are in 
accordance with 50 CFR part 660, the regulations implementing the FMP.
    For the following reasons, NMFS finds good cause, pursuant to 5 
U.S.C. 553(b)(B) to waive prior public notice

[[Page 26328]]

and comment on the 2008 Pacific whiting specifications.
    The FMP requires that fishery specifications be evaluated 
periodically using the best scientific information available. NMFS 
completes a Pacific whiting stock assessment every year in cooperation 
with Canadian scientists. The 2008 stock assessment for Pacific whiting 
was prepared in early 2008, which is the optimal time of year to 
conduct stock assessments for this species due to the unavailability 
2007 data until that time. New 2007 data used in this assessment 
include updated total catch, length and age data from the U.S. and 
Canadian fisheries, and biomass indices from the Joint US-Canadian 
acoustic/midwater trawl surveys. Pacific whiting differs from other 
groundfish species in that it has a shorter life span and the 
population fluctuates more swiftly. Thus, it is important to use the 
most recent stock assessment when determining ABC and OY. Because of 
the timing of the assessment, the results are not available for use in 
developing the new ABC and OY until just before the Council's annual 
March meeting. For the actions to be implemented in this final rule, 
affording the time necessary for prior notice and opportunity for 
public comment would prevent the agency from managing the Pacific 
whiting and related fisheries using the best available science to 
approach without exceeding the OYs. Delaying this action would be 
impracticable and contrary to the public's interest and NMFS's 
obligations under the Magnuson-Stevens Act.
    Also for these reasons, NMFS finds good cause to waive the 30-day 
delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this 
final rule may become effective as soon as possible after the April 1, 
2008, fishery start date. As stated previously, Pacific whiting differs 
from other groundfish species in that it has a shorter life span and 
the population fluctuates more swiftly. Thus, it is important to use 
the most recent stock assessment when determining ABC and OY. Because 
of the timing of the assessment, the results are not available for use 
in developing the new ABC and OY until just before the Council's annual 
March meeting. Because of the timing of the assessment, the results are 
not available for use in developing the new ABC and OY until just 
before the Council's annual March meeting. Delaying the implementation 
of the rule to allow for the 30-day delay in effectiveness would 
prevent the agency from managing the Pacific whiting and related 
fisheries using the best available science to approach without 
exceeding the OYs. Thus, the AA waives the 30-day delay in effectivess 
and makes this rule effective upon publication.
    The environmental impacts associated with the Pacific whiting 
harvest levels being adopted by this action are consistent with the 
impacts in the final environmental impact statement for the 2007-2008 
specification and management measures. Copies of the FEIS and the ROD 
are available from the Council (see ADDRESSES).
    An Initial Regulatory Flexibility Analysis (IRFA) and FRFA were 
prepared for the 2007-2008 harvest specifications and management 
measures, which included the regulatory impacts of this action on small 
entities. The IRFA was summarized in the proposed rule published on 
September 29, 2006 (71 FR 57764). The following summary of the FRFA 
analysis, which covers the entire groundfish regulatory scheme of which 
this is a part, was published in the final rule on December 29, 2006 
(71 FR 78638). The need for and objectives of this final rule are 
contained in the SUMMARY and in the Background section under 
SUPPLEMENTARY INFORMATION.
    The final 2007-2008 specifications and management measures were 
intended to allow West Coast commercial and recreational fisheries 
participants to fish the harvestable surplus of more abundant stocks 
while also ensuring that those fisheries do not exceed the allowable 
catch levels intended to rebuild and protect overfished and depleted 
stocks. The specifications (ABCs and OYS) follow the guidance of the 
Magnuson-Stevens Act, the national standard guidelines, and the FMP for 
protecting and conserving fish stocks. Fishery management measures 
include trip and bag limits, size limits, time/area closures, gear 
restrictions, and other measures intended to allow year-round West 
Coast groundfish landings without compromising overfished species 
rebuilding measures.
    In recent years the number of participants in the Pacific whiting 
fishery has ranged from 29 to 37 shoreside trawl vessels; 4 to 6 
motherships with a fleet of 11 to 20 catcher vessels, 5 and 9 catcher 
processors and 14 to 15 shorebased processors. As explained below, we 
expect that this final rule will result in some positive economic 
impacts due to increased production and revenue and some negative 
impacts due to rising fuel prices. Because of the uncertainty of these 
impacts, it is not possible for NMFS to quantify the net change in 
economic impact of this final rule as compared to that analyzed in the 
FEIS for the 2007-2008 specifications and management measures.
    The 2007 fishery landed 224,529 mt that generated $37 million in 
ex-vessel revenues at $165 per ton. Ex-vessel revenues in 2007 were the 
highest on record. The 2008 OY is approximately 9 percent larger than 
the 2007 OY. Being able to harvest the entire Pacific whiting OY will 
depend on how well the industry stays within the bycatch limits 
established for overfished species taken incidentally in the fishery. 
Assuming that there are no bycatch issues, it is expected that 2008 
landings will continue the growth in annual revenue that has occurred 
since 2004 when the fishery harvested about 215,000 mt worth $17 
million at about $80 per ton ex-vessel. In addition to an increase in 
the OY, the major factor for increased revenues is the increased demand 
for whiting products, especially headed and gutted products. Over the 
2004-2007 period, wholesale prices for headed and gutted product 
increased from about $1,200 per ton to $1,600 per ton. While indicating 
that there are signs that wholesale prices may be leveling off, 
industry publications are also indicating that markets for the Pacific 
whiting products will be as strong in 2008 as they were in 2007 as a 
result of European and Asian exchange rates, growing market demand, and 
declines in whiting production from South American sources. Therefore, 
revenues in 2008 may be greater than in 2007 either as a result of a 
potential price increases or because of the increase in the OY.
    Although wholesale and ex-vessel prices may either level off or 
continue to rise, fuel prices, a major expenditure category for whiting 
vessels, have been increasing dramatically since last year. For 
example, April 2008 marine diesel prices in Newport, Oregon, reached 
$3.70 per gallon compared to April 2007 levels of $2.39 per gallon. 
Therefore, levels of profitability achieved in 2007 may not be 
maintained in 2008.
    NMFS issued Biological Opinions under the ESA 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 Pacific Coast 
groundfish FMP fisheries 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, and 
Oregon coastal), chum salmon (Hood Canal summer, Columbia River),

[[Page 26329]]

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, southern California).
    NMFS reinitiated a formal section 7 consultation under the ESA in 
2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999 Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000 fish Chinook incidental take threshold was exceeded, triggering 
reinitiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to do a more complete 
analysis of salmon take in the bottom trawl fishery.
    NMFS completed its reinitiation of consultation and prepared a 
Supplemental Biological Opinion dated March 11, 2006. In its 2006 
Supplemental Biological Opinion, NMFS concluded that catch rates of 
salmon in the 2005 Pacific whiting fishery were consistent with 
expectations considered during prior consultations. Chinook bycatch has 
averaged about 7,300 over the last 15 years and has only occasionally 
exceeded the reinitiation trigger of 11,000. Since 1999, annual Chinook 
bycatch has averaged about 8,450. The Chinook ESUs most likely affected 
by the Pacific whiting fishery have generally improved in status since 
the 1999 section 7 consultation. Although these species remain at risk, 
as indicated by their ESA listing, NMFS concluded that the higher 
observed bycatch in 2005 does not require a reconsideration of its 
prior ``no jeopardy'' conclusion with respect to the fishery. For the 
groundfish bottom trawl fishery, NMFS concluded that incidental take in 
the groundfish fisheries is within the overall limits articulated in 
the Incidental Take Statement of the 1999 Biological Opinion. The 
groundfish bottom trawl limit from that opinion was 9,000 fish 
annually. NMFS will continue to monitor and collect data to analyze 
take levels. NMFS also reaffirmed its prior determination that 
implementation of the Groundfish FMP is not likely to jeopardize the 
continued existence of any of the affected ESUs.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) were 
recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) 
were recently relisted as threatened under the ESA. The 1999 biological 
opinion concluded that the bycatch of salmonids in the Pacific whiting 
fishery were almost entirely Chinook salmon, with little or no bycatch 
of coho, chum, sockeye, and steelhead. The Southern Distinct Population 
Segment (DPS) of green sturgeon (71 FR 17757, April 7, 2006) were also 
recently listed as threatened under the ESA. As a consequence, NMFS has 
reinitiated its Section 7 consultation on the PFMC's Groundfish FMP.
    After reviewing the available information, NMFS concluded that, in 
keeping with Sections 7(a)(2) and 7(d) of the ESA, the proposed action 
would not result in any irreversible or irretrievable commitment of 
resources that would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.
    Pursuant to Executive Order 13175, this action was developed after 
meaningful consultation and collaboration with tribal officials from 
the area covered by the FMP. Under the Magnuson-Stevens Act at 16 
U.S.C. 1852(b)(5), one of the voting members of the Council must be a 
representative of an Indian tribe with federally recognized fishing 
rights from the area of the Council's jurisdiction. In addition, 
regulations implementing the FMP establish a procedure by which the 
tribes with treaty fishing rights in the area covered by the FMP 
request new allocations or regulations specific to the tribes, in 
writing, before the first of the two meetings at which the Council 
considers groundfish management measures. Only the Makah Tribe 
requested a whiting allocation for 2008.
    The regulations at 50 CFR 660.324(d) further state ``the Secretary 
will develop tribal allocations and regulations under this paragraph in 
consultation with the affected tribe(s) and, insofar as possible, with 
tribal consensus.'' The tribal whiting allocation finalized by this 
final rule was recommended by the Council based on the sliding scale 
allocation formula which was recommended by the Makah tribe and is 
described above.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: May 5, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.385 paragraph (e) is revised to read as follows:


Sec.  660.385  Washington coastal tribal fisheries management measures.

* * * * *
    (e) Pacific whiting. The tribal allocation is 35,000 mt.
* * * * *

0
3. Tables 2a, 2b, and 2c to part 660 subpart G are revised to read as 
follows:
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