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

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


Final rule.


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.


Effective May 9, 2008.


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.

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Becky Renko (Northwest Region, NMFS) 206-526-6110.

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Electronic Access

This final rule is accessible via the Internet at the Office of the Federal Register's Website at​fr/​index.html.

Background information and documents are available at the NMFS Northwest Region Web site at​Groundfish-Halibut/​Groundfish-Fishery-Management/​index.cfm.


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).Start Printed 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 200 8 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 Start Printed Page 26327and 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.


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.


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).


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 Start Printed Page 26328and 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), Start Printed Page 26329sockeye 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.

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List of Subjects in 50 CFR Part 660

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Dated: May 5, 2008.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

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For the reasons set out in the preamble,

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

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

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

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Washington coastal tribal fisheries management measures.
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(e) Pacific whiting. The tribal allocation is 35,000 mt.

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

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[FR Doc. E8-10382 Filed 5-8-08; 8:45 am]