[Federal Register Volume 63, Number 84 (Friday, May 1, 1998)]
[Rules and Regulations]
[Pages 24212-24237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11471]
[[Page 24211]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
50 CFR Part 600
Magnuson-Stevens Act Provisions; National Standard Guidelines; Final
Rule
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Rules and
Regulations
[[Page 24212]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 970708168-8073-02; I.D. 061697B]
RIN 0648-AJ58
Magnuson-Stevens Act Provisions; National Standard Guidelines
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS revises guidelines for national standards 1 (optimum
yield), 2 (scientific information), 4 (allocations), 5 (efficiency),
and 7 (costs and benefits); and adds guidelines for new national
standards 8 (communities), 9 (bycatch), and 10 (safety of life at sea).
The guidelines are intended to assist in the development and review of
Fishery Management Plans (FMPs), amendments, and regulations prepared
by the Regional Fishery Management Councils (Councils) and the
Secretary of Commerce (Secretary) under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). The revisions
and additions implement the October 1996 amendments to the Magnuson-
Stevens Act, which resulted from the Sustainable Fisheries Act (SFA).
Additional minor changes are made to conform national standard
guideline language to the Magnuson-Stevens Act, as amended. Numerous
changes were made to the proposed rule based on comments received.
DATES: Effective June 1, 1998.
FOR FURTHER INFORMATION CONTACT: George H. Darcy, 301-713-2341.
SUPPLEMENTARY INFORMATION: On October 11, 1996, the President signed
into law the SFA (Pub. L. 104-297), which made numerous amendments to
the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.). This rule amends 50
CFR part 600, subpart D, to update the national standard guidelines and
to implement the Magnuson-Stevens Act amendments pertaining to the
national standards.
Background
Section 301(a) of the Magnuson-Stevens Act contains 10 national
standards for fishery conservation and management, with which all FMPs
and amendments prepared by the Councils and the Secretary must comply.
Section 303(b) requires that the Secretary establish advisory
guidelines, herein referred to as ``national standard guidelines,''
based on the national standards, to assist in the development of FMPs.
In addition to amending several existing national standards, the SFA
established three new national standards, which require consideration
of impacts of fishery management decisions on fishing communities
(national standard 8), bycatch (national standard 9), and safety of
life at sea (national standard 10).
On August 4, 1997, NMFS published a proposed rule at 62 FR 41907 to
amend the national standard guidelines; comments were requested through
September 18, 1997. The preamble of the proposed rule contained
detailed descriptions of the proposed amendments, which are not
repeated here. Thirty-seven sets of comments were received during the
comment period, which are responded to in the Comments and Responses
section of this preamble.
Because of remaining issues regarding interpretation of the
Magnuson-Stevens Act's provisions relative to overfishing and
rebuilding overfished stocks, NMFS reopened the public comment period
on national standard 1 on December 29, 1997 (62 FR 67608), for an
additional 30 days. Comments were specifically requested regarding four
issues: (1) Usage of the terms ``overfishing'' and ``overfished,'' (2)
usage of the terms ``fishery'' versus ``stock,'' (3) rebuilding
schedules for overfished stocks, and (4) exceptions for mixed-stock
fisheries. The notice of reopening of the comment period on national
standard 1 contained a detailed explanation of those issues, which is
not repeated here. Thirty-four additional sets of comments were
received during the reopened comment period; those comments are also
responded to in the Comments and Responses section.
Changes from the Proposed Rule
As a result of public comments received both during the initial
comment period and the reopened comment period, NMFS has made the
following changes from the proposed rule:
General
NMFS reviewed the entire text of the guidelines to ensure that the
terms ``shall,'' ``must,'' and ``should'' are used consistent with the
definitions in Sec. 600.305. ``Shall'' is used only when quoting
directly from the statute, ``must'' denotes a statutory obligation, and
``should'' indicates that an action is strongly recommended to fulfill
the Secretary's interpretation of the Magnuson-Stevens Act.
National Standard 1
1. Section 600.310(c)(3) has been revised to indicate that a
reasonable proxy for the MSY stock size is approximately 40 percent of
the pristine stock size, rather than the range of 27-75 percent as
previously included. This change was made to better reflect the
findings of fishery science literature. (See also the response to
comment 20 under national standard 1).
2. Section 600.310(d)(4)(iii) has been revised to include a
reference to guidelines issued under section 305(b) of the Magnuson-
Stevens Act for Council actions concerning essential fish habitat. (See
also the response to comment 18 under national standard 1.)
3. Section 600.310(d)(6) has been revised to provide more
flexibility in managing mixed-stock fisheries. The proposed guidelines
would have allowed overfishing on one component of a mixed-stock
fishery only if the rate or level of fishing mortality would not cause
any stock or stock complex to fall below its minimum stock size
threshold. Paragraph (d)(6)(iii) has been revised to remove that
requirement. Paragraph (d)(6)(ii) has been revised to clarify that the
intent of the required analysis is thorough consideration of measures
that could prevent or mitigate overfishing of one or more stocks in a
mixed-stock fishery. (See also the response to comment 35 under
national standard 1.)
4. Section 600.310(e)(4)(ii) has been substantively revised to
elaborate on the length of rebuilding programs for overfished stocks.
The proposed guidelines had simply repeated the statutory language from
section 304(e)(4) of the Magnuson-Stevens Act. The notice reopening the
comment period offered two options. After considering public comments
(see comments 8-16 under national standard 1), NMFS has chosen the more
flexible interpretation.
To give meaning to the statutory requirement that a rebuilding
program be ``as short as possible,'' the starting point in structuring
a rebuilding program is the length of time in which a stock could be
rebuilt in the absence of fishing mortality on that stock. If that
period is less than 10 years, the factors in section 304(e)(4)(A)(i),
including the needs of fishing communities, may be used to adjust the
rebuilding period up to 10 years. If the stock cannot be rebuilt within
10 years, because of the factors listed in section 304(e)(4)(A)(ii),
the factors in section 304(e)(4)(A)(i) may be used to justify a
schedule longer than the no-mortality period. To ensure that
[[Page 24213]]
the rebuilding period is not indefinite, the outside limit of the
rebuilding period is the no-mortality period plus one mean generation
time (or equivalent period based on the species' life-history
characteristics).
5. Section 600.310(f)(2)(i) and (ii) have been revised so as not to
under emphasize the benefits to the Nation accruing from food
production and recreational opportunities. (See also the response to
comment 34 under national standard 1).
6. Section 600.310(f)(4)(ii) has been revised so that the annual
harvest level obtained under an OY control rule ``must'' instead of
``should'' always be less than or equal to the harvest level under an
MSY control rule. This change reflects the SFA's amendment to the
definition of ``optimum.''
7. Section 600.310(f)(4)(iii) has been revised to change the term
``research fishing'' to ``scientific research'' to clarify that
``fishing'' under the Magnuson-Stevens Act does not include scientific
research activity conducted from a scientific research vessel. (See
also the response to comment 45 under national standard 1.)
National Standard 2
1. Section 600.315(e)(1) introductory text has been revised to
clarify that SAFE reports are intended to summarize the most recent
information concerning the biological condition of stocks and the
marine ecosystems in the fishery management unit and the social and
economic condition of the recreational and commercial fishing
interests, fishing communities, and the fish processing industries.
(See also the response to comment 4 under national standard 2.)
2. Section 600.315(e)(1)(ii) has been revised to include safety as
one of the types of information that should be summarized in SAFE
reports. (See also the responses to comment 2 under national standard 2
and comment 3 under national standard 10).
National Standard 5
Section 600.330(b)(1) has been revised to replace the term
``encouraging,'' with regard to efficient utilization of fishery
resources, with the term ``considering,'' to make the wording
consistent with the intent of Congress. (See also the response to
comment 1 under national standard 5.)
National Standard 8
Section 600.345(c) has been revised, replacing ``should'' with
``must'' in order to reflect the obligation under national standard 8.
National Standard 9
1. Section 600.350(b) has been revised in its entirety to clarify
the consideration of bycatch effects of existing and planned
conservation and management measures. (See also the response to comment
11 under national standard 9.)
2. Section 600.350(c) has been revised to add language to clarify
that Atlantic highly migratory species harvested in a commercial
fishery that are not regulatory discards and that are tagged and
released alive under a scientific tag-and-release program established
by the Secretary are not considered bycatch. Also, language was added
to specify that bycatch includes the discard of whole fish at sea or
elsewhere. (See also the responses to comments 7 and 8 under national
standard 9.)
3. Section 600.350(c)(2) has been removed. (See also the response
to comment 7 under national standard 9.)
4. Section 600.350(d) has been revised by replacing ``should'' with
``must'' in order to reflect the obligation under national standard 9.
The introductory text has also been revised to emphasize that NMFS
believes the first priority for reducing bycatch should be to avoid
catching bycatch species where possible. Additional text has been added
to Sec. 600.350(d) to indicate that, in their evaluation of bycatch
minimization measures, Councils must consider net benefits to the
Nation. At the end of Sec. 600.350(d) introductory text, the word
``shall'' has been changed to ``must'' to emphasize that the evaluation
requirements of the Magnuson-Stevens Act under this national standard
are not discretionary. (See also the responses to comments 24, 25, and
28 under national standard 9.)
5. The first sentence in section 600.350(d)(1) has been revised,
replacing ``should'' with ``must'' in order to reflect the required
provisions of a fishery management plan under section 303(a)(11) and
(12) of the Magnuson-Stevens Act.
6. Section 600.350(d)(2) has been revised to indicate that, in the
absence of quantitative estimates of the impacts of each alternative,
Councils may use qualitative ``measures'' (rather than ``estimates'').
In addition, a sentence has been added to indicate that information on
amount and type of bycatch should be summarized in the SAFE report.
(See also the response to comment 31 under national standard 9).
7. Section 600.350(d)(3) has been revised to include language that
indicates that determinations of whether conservation and management
measures minimize bycatch and bycatch mortality to the extent
practicable must also be consistent with maximization of net benefits
to the Nation. The paragraphs under Sec. 600.350(d)(3) have been
redesignated to accommodate the addition of a new paragraph (d)(ii),
which states that the Councils should, in selecting bycatch
minimization measures, adhere to the precautionary principle found in
the FAO Code of Conduct for Responsible Fisheries. (See also the
responses to comments 33 and 35 under national standard 9.)
8. Section 600.350(d)(4) has been revised to delete the terms
``implement'' and ``implementation'' when referring to the Councils'
required actions under national standard 9, because it is NMFS'
responsibility, rather than that of the Councils, to implement
management measures. This change was not a result of public comment.
National Standard 10
Section 600.355(b)(3) has been revised to include language that
clarifies that safety of the fishing vessel and the protection from
injury of persons aboard the vessel are considered the same as ``safety
of human life at sea.'' (See also the response to comment 5 under
national standard 10.)
Comments and Responses
General
Numerous commenters concluded that, in general, the proposed
guidelines reflect fairly the intent of the SFA's amendments to the
Magnuson-Stevens Act. Comments concerning specific aspects of the
proposed revisions to guidelines for individual national standards are
presented and responded to in the following paragraphs.
NMFS received several comments on language contained in the
preamble of the proposed rule. Because the preamble was intended only
to explain and clarify material contained in the codified text, NMFS
has not responded to comments that pertained only to the preamble.
However, in instances where such comments pertained also to language in
the codified text, or where such comments led to changes in the
codified text from the proposed rule, NMFS has responded in the
following paragraphs.
Comment 1: Several commenters expressed their view that sufficient
flexibility should be provided in the guidelines to provide managers
with appropriate latitude to meet the objectives of the SFA while
respecting the needs of communities and citizens.
Response. NMFS agrees that some flexibility in application of the
national standards was intended by Congress, is necessary to manage the
diverse
[[Page 24214]]
fisheries of the Nation, and should be provided to respond to the needs
of fishery participants and communities, so long as the stocks upon
which the fisheries are based can be rebuilt and their productivity
sustained. However, any such flexibility must be consistent with all of
the statutory requirements of the Magnuson-Stevens Act. In addition,
NMFS believes that the guidelines must reflect the intent of the
Magnuson-Stevens Act taken as a whole. After carefully considering the
public comments received, the language in the SFA, and the legislative
history, NMFS concluded that there is justification to introduce
greater flexibility in certain aspects of the guidelines, most notably
the rebuilding schedules for overfished stocks and for mixed-stock
fisheries; those changes have been made in this final rule. (See also
Changes from the Proposed Rule and responses to comments 9 and 35 under
national standard 1.)
Comment 2. One letter of comment stated that the final rule should
clarify that the national standard guidelines are advisory and do not
have the force and effect of law.
Response. NMFS agrees that the guidelines do not have the force and
effect of law and believes it made that point clearly in the preamble
to the proposed rule. For example, the proposed rule contains the
following statements:
(1) ``These proposed guidelines are intended to provide direction
and elaboration on compliance with the national standards and, in
themselves, do not have the force and effect of law.''
(2) ``The guidelines are intended to assist in the development and
review of Fishery Management Plans (FMPs), amendments, and regulations
...''
(3) ``The proposed guidelines explain requirements and provide some
options for compliance with the guidelines. Lists and examples are not
all inclusive; rather, they are intended to provide illustrations of
the kind of information, discussion, or examination/analysis useful in
demonstrating consistency with the standard in question. The proposed
guidelines are intended to provide for reasonable accommodation of
regional or individual fishery characteristics, provided that the
requirements of the Magnuson-Stevens Act are met. The guidelines are
intended as an aid to decision making, with responsible conservation
and management of valued national resources as the goal.''
(4) ``The main purpose of the guidelines is to aid the Councils in
fulfilling the requirements of the Magnuson-Stevens Act.''
Throughout the proposed rule, the guidelines are referred to as
advisory, explanatory, and interpretive. In addition, NMFS has
attempted to make clear the distinction between ``must'' and ``should''
as used in the guidelines.
Comment 4. One commenter stated that it will be very difficult for
the Councils to meet the SFA's compliance deadlines for all fisheries,
given the requirements set forth in the guidelines.
Response. NMFS agrees that the statutory deadlines established by
the SFA and reflected in the guidelines will be challenging to meet.
However, NMFS is committed to working closely with the Councils to meet
those deadlines.
Comment 5. One commenter suggested that aquaculture activities
should be considered in the guidelines because, even with the best
regulatory controls and the restoration of wild stocks to levels that
produce maximum sustainable yield (MSY), the demand for seafood
products cannot be met from these sources alone.
Response. Aquaculture is considered a fishery, as defined by the
Magnuson-Stevens Act, so the national standard guidelines apply and
should be followed by Councils as they consider integrating aquaculture
activities into FMPs.
Comment 6. One commenter questioned NMFS' ability to comply with
several provisions of the SFA because of budgetary constraints.
Response. Compliance with all of the provisions of the amended
Magnuson-Stevens Act has been difficult, at best. However, NMFS has had
significant success in implementation, within the available resources,
using all of the available tools at its disposal. For example, the
great majority of the deadlines established in the SFA that are within
the control of NMFS have been met. In the few instances where deadlines
have been missed, it has been primarily the result of providing
additional time for public involvement and comment. NMFS' successes in
meeting deadlines have been due in part to reprogramming of priorities
and resources within NMFS to the maximum extent allowed by law, and to
Congressional reprogramming of funds made available within NOAA.
Comment 7. One commenter stated that NMFS must consider all
affected users, including seafood consumers, in managing fisheries. The
goal should be healthy, sustainable use for everyone's benefit.
Response. NMFS agrees that all users must be considered in
achieving the Magnuson-Stevens Act's goal of maximizing net benefits to
the Nation.
Comment 8. Two commenters stated that NMFS is inviting trouble by
stating in the preamble that it will take considerable time and effort
to bring all FMPs into compliance. Waiting until the October 11, 1998,
deadline to amend all FMPs will cause a logjam of amendments, and
conservation reforms will not be implemented in a timely manner.
Response. NMFS has worked with the Councils from the earliest
stages of implementation of the SFA to plan and prepare for necessary
amendments of FMPs. In addition, NMFS has conveyed to the Councils
that, on October 11, 1996, the day the President signed the SFA into
law, many of the provisions of the SFA, such as national standards 8,
9, and 10, became effective. All regulatory actions finalized after
that date were required to comply with those standards, as well as with
many other provisions of the SFA. In some cases, the details of
implementation have had to be developed, such as the national standard
guidelines that are the subject of this rule. Until those details are
finalized, the Councils will not be able to take them fully into
account in development of their management actions. As the specifics of
those provisions are finalized, all of the Councils' proposed actions
will be judged on the basis of those requirements, as well.
Comment 9. Several commenters suggested that anecdotal information
and public testimony should be allowed and treated as fact. A
particular concern was that, in establishing objective and measurable
criteria for determining the status of a stock, anecdotal information
from fishermen, especially commercial information, is precluded from
use in stock assessments.
Response. The Magnuson-Stevens Act requires the use of the best
scientific information available and the use of quantifiable parameters
to manage fisheries. The inclusion of objective and measurable criteria
in the guidelines applies the Magnuson-Stevens Act's approach to using
reproducible, scientifically based information in stock assessments.
This approach is necessary to preclude having to choose among
unsubstantiated opinions about a stock's condition. The public is free,
however, to submit anecdotal information to the Councils and to the
Secretary, including through public testimony and comment during the
development of plans and implementing regulations; all such information
will be made part of the administrative record. While anecdotal
information cannot be afforded the same status as scientific
information obtained under a well-designed data collection
[[Page 24215]]
plan, it can be particularly useful in identifying potential problems
with scientifically obtained information and can be part of the basis
for a redesign of the data collection program.
Comment 10. Several commenters requested that, given the complex
nature of the proposed guidelines, additional time be allowed for
public comment. Others expressed serious concern that the lack of
guidance on critical issues such as overfishing could compromise the
ability of the Councils to comply with the new conservation
requirements of the Magnuson-Stevens Act. Some commenters felt that
delays in issuing final guidelines have undermined public confidence in
NMFS' commitment and ability to effectively implement the conservation
mandates of the Magnuson-Stevens Act and urged NMFS to complete the
comment periods and proceed with advice and guidelines to the Councils
as swiftly as possible.
Response. Despite its commitment to publish final guidelines as
soon as possible, after reviewing the diverse comments received during
the first comment period, NMFS determined that it was in the best
interest of the public to provide an additional opportunity for comment
on the most problematic issues regarding national standard 1. However,
the completion of the Report to Congress and notification of Councils
of the list of overfished fisheries on September 30, 1997, placed an
imperative on NMFS to complete the guidelines as quickly as possible.
If Councils fail to submit rebuilding plans for all overfished stocks
by September 30, 1998, the Secretary must develop rebuilding plans for
the Councils for each overfished stock by June 30, 1999.
Comment 11. One commenter disagreed with NMFS' determination that
the proposed rule would not have a significant economic impact on a
substantial number of small entities for purposes of the Regulatory
Flexibility Act.
Response. NMFS believes that its determination of no significant
economic impacts on a substantial number of small entities in the
proposed rule accurately reflects the effects of this action on small
entities. Because this rule only amends guidelines, and does not have
the force and effect of law, it does not, in itself, revise any
existing regulatory programs or establish any new regulatory
requirements. NMFS has no basis, at this time, to assess specific
effects of possible future management actions that may result from this
rule, except in the broadest sense. Only when future amendments to
fishery management programs are implemented will potential impacts on
small entities occur. At the time regulations are developed, the
impacts on small entities of potential alternatives will be assessed;
Regulatory Flexibility Analyses and other analytical documents will be
prepared, as required by applicable law, and made available for public
comment.
National Standard 1
Comment 1. Several commenters objected to the fundamental role
played by MSY throughout the guidelines for national standard 1. A
variety of reasons were cited, including the lack of flexibility
afforded by use of MSY, the difficulty of estimating MSY, and the fact
that some fishery scientists disfavor the concept.
Response. No change was made. MSY is key to the Magnuson-Stevens
Act, even more so than under the former Magnuson Act. MSY now
constitutes an upper limit on optimum yield (OY), as stated in section
3(28)(B) of the Magnuson-Stevens Act; is established as the initial
target for rebuilding an overfished stock or stock complex in section
3(28)(C); and is the cornerstone of the definition of overfishing in
section 3(29). In reviewing the language in the Magnuson-Stevens Act as
a whole, and the legislative history of the SFA, NMFS believes the lack
of flexibility imposed by ascribing such a fundamental role to MSY was
clearly an intent of Congress. The difficulty of estimating MSY is a
significant problem that will require the best efforts of NMFS and the
Councils to solve. While it is true that some fishery scientists
disfavor the concept of MSY, others find it very useful, and its
application in international agreements is on the increase,
particularly in the establishment of precautionary approaches to
fishery management.
Comment 2: Several commenters offered the following view relative
to the usage of ``overfishing'' and ``overfished'': The terms
``overfishing'' and ``overfished'' used in the SFA are intended to have
the same meaning given to the term ``overfishing'' in the existing
guidelines and are not intended to change the emphasis on or timeframe
for addressing overfishing. The deletion of the modifier ``long-term''
from the regulatory definition of ``overfishing'' was not significant;
the use of MSY is a target, not a constraint within which OY is
determined. However, use of the term ``fishery'' instead of ``stock or
stock complex'' in the SFA definition of overfishing and overfished was
an intentional change from the wording in the existing guidelines to
ensure that multi-species or mixed-stock fisheries are managed and
considered as a unit.
Other commenters agreed with NMFS' interpretation that removal of
the phrase ``long-term'' in the statutory language is significant in
that it raises the standard to which conservation and management
measures are held.
Response: NMFS disagrees that the definition for ``overfishing''
and ``overfished'' in the SFA did not change the emphasis on or
timeframe for addressing overfishing or that MSY is only a target
instead of a constraint. However, NMFS does agree that use of the term
``fishery'' instead of ``stock or stock complex'' was an intentional
change intended to allow for the management of mixed-stock fisheries on
a unit basis (see also response to comments 35 and 36). The definition
for ``overfishing'' and ``overfished'' (identically defined) has as its
basis the current definition of ``overfishing'' in the existing
national standard guidelines (50 CFR 600.310(c)(1)). That definition
states: ``Overfishing is a level or rate of fishing mortality that
jeopardizes the long-term capacity of a stock or stock complex to
produce MSY on a continuing basis.''
During the development of the Magnuson-Stevens Act's amendments,
NOAA suggested to Congressional staff that the phrase ``long-term'' be
deleted from the definition of ``overfishing'' to require Councils to
stop overfishing sooner rather than later. Congress chose to delete the
modifier ``long-term'' when referring to the capacity of a stock to
produce MSY. NOAA considered this change to be significant. Other
amendments to the SFA bolster this interpretation:
(1) The rebuilding requirements (especially the 10-year maximum
with three very limited exceptions, and the Secretary's obligation to
develop rebuilding plans if the Councils fail to do so).
(2) Congress' conclusion that the survival of certain stocks is
threatened and that immediate action needs to be taken to protect those
stocks (section 2(a)(2) of the SFA).
In addition, floor debates in both the House and Senate expressed
Congressional displeasure with the length of time Councils have taken
in the past to address overfishing problems (see, for example, the
statement of Senator Stevens at S10810, September 18, 1996).
The SFA points to MSY as the goal of rebuilding programs and to
maintenance of stocks at this level on a continuing basis. Unless MSY
is established as a strict goal, the greatly enhanced benefits
anticipated by enactors of the SFA
[[Page 24216]]
cannot be achieved. This position is supported by the following:
(1) The intent of the SFA was to require Councils to ensure that
fish stocks were not harvested beyond their MSY, as evidenced by the
debate on the floor of the House, when members voted 304-113 to adopt
the Gilchrest amendment specifically stating that OY could no longer
exceed MSY. The new definition of ``optimum'' was maintained in the
Senate bill that ultimately became law.
(2) Section 3(28)(C) indicates that, for overfished fisheries,
rebuilding is to occur until the stocks have reached a level that can
produce MSY on a continuing basis.
(3) Inclusion of a rebuilding requirement in the Magnuson-Stevens
Act implies that stock size is relevant to the concept of
``overfishing'' and ``overfished,'' and that MSY (a measure of biomass)
is to be used as the measure against which the success of a rebuilding
program is judged. A rebuilding requirement without a biomass
foundation has no meaning.
(4) The phrase ``on a continuing basis'' in the SFA definition of
``overfishing'' indicates that stocks are to be maintained at levels
capable of producing MSY (and OY) on a continuous (uninterrupted)
basis; thus, short-term overfishing that causes populations to decline
below these levels is not permissible. HR 39 would have allowed OY to
exceed MSY for healthy fisheries, but that approach was rejected in the
Senate bill, which became law.
(5) Senator Hollings in the floor debate on the Sustainable
Fisheries Act (Congressional Record - Senate, September 18, 1996)
stated that ``The bill also: First, caps fishery harvests at the
maximum sustainable levels and requires action to prevent overfishing
and rebuild depleted fisheries; * * *''
(6) The summary of the Managers Amendment to S. 39 (The Sustainable
Fisheries Act), as printed in the Congressional Record - Senate on
September 19, 1996, states in the discussion regarding definitions that
``this change prevents the maximum sustainable yield of a fishery from
being exceeded.''
(7) Senate Report No. 104-276 regarding the Sustainable Fisheries
Act states on page 4077 that ``Finally, the substitute would amend the
existing definition of 'optimum' with respect to fishery yield to cap
fish harvests at the maximum sustainable yield.''
Comment 3. Several commenters objected to the proposed definition
of MSY control rule in Sec. 600.310(c)(1)(ii) or to the identification
of the maximum fishing mortality threshold with the MSY control rule in
Sec. 600.310(d)(2)(i). Typically, the objections centered around the
degree of flexibility afforded to the Councils in choosing the form of
the MSY control rule (and thereby, the maximum fishing mortality
threshold). Commenters generally felt that the language of the
Magnuson-Stevens Act permits only one choice of MSY control rule--
namely, harvesting at a single, invariant rate, where this rate is
chosen so as to maximize the resulting long-term average yield. Given
this interpretation, the commenters stated that the Councils should be
denied the option of varying the maximum fishing mortality threshold as
a function of stock size.
Response. No change was made. While the Magnuson-Stevens Act
clearly requires that fishing mortality be prevented from exceeding
rates or levels that would jeopardize the capacity of a stock or stock
complex to produce MSY on a continuing basis, it does not indicate that
such rates or levels cannot vary with stock size. In general, MSY
control rules that allow for the fishing mortality rate to vary with
stock size (i.e., those that decrease fishing mortality when stock size
is low) provide a higher average catch and a lower probability of
observing a seriously reduced stock size than those that require the
fishing mortality rate to remain constant. NMFS believes both of these
characteristics are very much in keeping with the letter and intent of
the Magnuson-Stevens Act.
Comment 4. Several commenters objected to the proposed inclusion of
a ``constant catch'' example in Sec. 600.350(c)(2)(i), feeling that
this particular MSY control rule is inefficient or potentially
dangerous.
Response. No change was made. The example is included partly for
logical completeness. The commenters are correct that this control rule
is a safe harvest strategy only when the catch level is chosen very
conservatively, in which case some amount of potential yield is
foregone. However, in cases where minimizing harvest variability is a
primary concern, it is conceivable that the greatest net benefits might
be realized by making such a tradeoff (i.e., by giving up a certain
amount of catch, on average, in order to increase year-to-year
stability of harvests).
Comment 5. Several commenters objected to the proposed definition
of MSY in Sec. 600.310(c)(1)(i). Concerns included the fact that the
largest long-term average catch may vary with changes in the minimum
size limit or selectivity pattern, the perception that the definition
is invalid for stocks that are already overfished, and the difficulty
of establishing a long-term average under current environmental
conditions when those conditions do not prevail over the long term.
Response. No change was made. As defined in Sec. 600.310(c)(1)(i),
MSY does not vary with changes in the minimum size limit or selectivity
pattern. While such changes can have an effect on long-term average
catches, the guidelines view MSY in a more global sense. In other
words, MSY is the largest long-term average catch across all possible
management regimes, not just a single management regime characterized
by a particular minimum size limit or selectivity pattern. In terms of
its applicability to overfished stocks, the guidelines' definition of
MSY is valid, providing that ``long-term'' is suitably defined. As to
the relationship between MSY and environmental conditions, it should be
noted that MSY is the largest long-term average catch that could be
obtained if current ecological and environmental conditions were to
remain constant indefinitely. Of course, ecological and environmental
conditions do not remain constant indefinitely, which is one of the
reasons for the guidelines' emphasis on the fact that MSY is a
theoretical concept, rather than an empirical one.
Comment 6. Several commenters were concerned that insufficient
consideration was given to allowing for uncertainty in the estimation
of MSY, for example due to errors in catch and other input data,
estimation errors in stock assessments, frequency of stock assessments,
and changes in environmental conditions.
Response. No change was made. As emphasized in
Sec. 600.310(c)(2)(ii), allowing for uncertainty in the estimation of
MSY is important. The items listed in the above comment are excellent
examples of factors that Councils are encouraged to consider in the
process of incorporating appropriate consideration of risk into the
estimation of MSY.
Comment 7. Several commenters objected to the examples of
alternatives to specifying MSY in Sec. 600.310(c)(3). A variety of
reasons were cited, including the fact that some of the examples listed
might not be appropriate in all cases, the fact that some possible
alternatives were not listed, and the fact that the alternatives listed
depend on estimated values rather than known quantities.
Response. No change was made. As noted in Sec. 600.305(c)(9),
examples (such as those listed in Sec. 600.310(c)(3)) are given by way
of illustration and further explanation. They are not inclusive lists;
they do not limit options. Thus,
[[Page 24217]]
the reference points listed in Sec. 600.310(c)(3) are intended to
suggest some ways in which Councils might proceed in the event that
data are insufficient to estimate MSY directly. The fact that a
reference point is not included in Sec. 600.310(c)(3) does not
necessarily mean that it may never be used as a proxy for MSY. Nor does
the fact that a reference point is included in Sec. 600.310(c)(3)
necessarily mean that it may always be used as a proxy for MSY.
However, there is no escaping the conclusion that, regardless of
whether MSY or a proxy is used, some sort of estimation will
necessarily be involved.
Comment 8. Several commenters objected to proposed paragraphs that
contain references to a 10-year time period for rebuilding, but that do
not contain the full text of the statutory language clarifying that 10
years is a constraint rather than a target. In particular, some
commenters objected to the mention of a 10-year time period for
rebuilding in Sec. 600.310(d)(2)(ii), feeling that this contradicted
the fuller discussion of the statutory language in
Sec. 600.310(e)(4)(ii). More specifically, a stock that is below the
MSY level, but not overfished under Sec. 600.310(d)(2)(ii), might take
as long as 10 years to rebuild to the MSY level if fished at the
maximum rate allowable under Sec. 600.310(d)(2)(i), even though the
Magnuson-Stevens Act states clearly that the rebuilding period for an
overfished stock or stock complex must be as short as possible, taking
into account the status and biology of the stock or stock complex, the
needs of fishing communities, recommendations by international
organizations in which the United States participates, and the
interaction of the overfished stock or stock complex within the marine
ecosystem.
Response. No change was made. The statutory timeframe for
rebuilding is clearly a binding constraint on Council actions
undertaken to rebuild a stock or stock complex that is overfished. No
provision of the guidelines can, or is intended to, override the
statutory language. The subject of Sec. 600.310(d)(2)(ii), the minimum
stock size threshold, is distinctly different from the subject of
Sec. 600.310(e)(4)(ii), the acceptable timeframe for rebuilding an
overfished stock or stock complex. The former describes how to tell
whether a stock or stock complex is overfished, while the latter
describes what to do if a stock or stock complex is overfished.
Comment 9. Several commenters asked that the guidelines contain an
explicit interpretation of the statutory description of the time period
for rebuilding summarized in Sec. 600.310(e)(4)(ii) of the proposed
rule.
Response. NMFS agrees; this request was a primary reason the
comment period was reopened. As described under Changes from the
Proposed Rule, Sec. 600.310(e)(4)(ii) has been substantially revised to
interpret the statutory provision.
Comment 10. One commenter stated that the biology of the stock does
not dictate a rebuilding period of more than 10 years unless recovery
is impossible in the absence of all fishing mortality.
Response. The starting point in structuring a rebuilding program is
the length of time it would take a stock to recover if fishing
mortality ceased. That a stock is long-lived, or reproduces slowly,
does not necessarily mean that it could not be rebuilt within 10 years.
The initial relevant inquiry is the no-fishing mortality period. If it
is less than 10 years, factors such as the needs of fishing communities
may justify lengthening the schedule to 10 years. If the no-mortality
period is longer than 10 years, the schedule can also be adjusted,
relying on those factors, up to a limit based on the stock's life-
history characteristics.
Comment 11. A number of commenters preferred the first option
offered in the notice reopening the comment period. They believed the
rebuilding period should not be indeterminate. For stocks that cannot
be rebuilt within 10 years, even in the absence of fishing mortality,
the commenters thought the factors in section 304(e)(4)(A)(i) of the
Magnuson-Stevens Act should not be used to extend the rebuilding
period.
Response. NMFS agrees that the rebuilding period should not be
indeterminate. For stocks that will take more than 10 years to rebuild,
the guidelines impose an outside limit that is objective, measurable,
and linked to the biology of the particular species. While the
statutory language is subject to more than one interpretation, NMFS
believes the factors in section 304(e)(4)(A)(i) may be used to extend
the rebuilding period, whether the no-fishing mortality period is
shorter or longer than 10 years.
Comment 12. Two commenters argued that ``as short as possible''
means the time period should not be allowed to stretch to 10 years for
stocks that could be rebuilt more quickly.
Response. The guidelines allow a rebuilding program to extend to 10
years, but only when the Council can justify that the needs of fishing
communities or other factors in section 304(e)(4)(A)(i) of the
Magnuson-Stevens Act outweigh the imperative to rebuild the stock as
quickly as possible.
Comment 13. Other commenters stated the outer limit should be
``reasonable,'' perhaps based on life-history characteristics.
Proposals included 10 years plus one reproduction cycle; one generation
time; and the no-fishing mortality period plus a period linked to
fishing mortality levels that will not prevent steady rebuilding. Some
commenters believed that Congress did not intend for many fisheries to
be closed if they could not be rebuilt within 10 years; rather, a
reduced level of fishing should be allowed.
Response. The guidelines strike a balance between the Congressional
directive to rebuild stocks as quickly as possible, and the desire,
expressed in national standard 8, to minimize adverse economic effects
on fishing communities. For stocks that cannot be rebuilt within 10
years, the guideline allows flexibility in setting the rebuilding
schedule beyond the no-fishing mortality period, but places a
reasonable, species-specific cap on that flexibility by limiting the
extension to one mean generation time. Reduced fishing mortality that
result in steady increases in the biomass are acceptable, if rebuilding
goals can be met within the timeframe specified in the guideline.
Comment 14. A few commenters thought there should be no upper limit
on the rebuilding period, and that the length of a rebuilding schedule
should be left to Council discretion.
Response. Congress chose 10 years as the upper limit for the
rebuilding period for most stocks; the exceptions in section
304(e)(4)(A)(ii) of the Magnuson-Stevens Act are narrow. For stocks
that fall within the exceptions, the mandate that they be rebuilt in
``as short as possible'' a period indicates the need for a definite,
measurable bound on the rebuilding schedule. The Congressional intent
is very clear, that the previous practice of unlimited discretion in
rebuilding stocks must be changed.
Comment 15. Several commenters suggested that stocks whose
rebuilding would not be affected by the cessation of fishing mortality
should be exempt from the provisions of section 304(e)(4) of the
Magnuson-Stevens Act.
Response. NMFS understands that factors other than fishing
mortality confound and handicap rebuilding efforts for some stocks, but
can find no basis in the statute for exempting such stocks from the
rebuilding requirement. (See also the response to comment 18 under
national standard 1). The flexibility introduced in the rebuilding and
mixed-stock provisions of the
[[Page 24218]]
guidelines should assist in management of these stocks.
Comment 16. Two commenters suggested that the guidelines contain an
explicit description of the starting point for the rebuilding period.
Response. Section 600.310(e)(4)(ii) has been revised to indicate
that the rebuilding period commences as soon as the first measures in a
new or revised rebuilding program are implemented.
Comment 17. Two letters of comment raised concern that rebuilding
programs may not be adopted until the year 2000 due to delays in
approving new overfishing definitions and the submission of rebuilding
programs based on those definitions. The commenters believe that new
overfishing definitions and rebuilding programs in accordance with
those programs should be submitted by October 11, 1998.
Response. NMFS agrees that rebuilding programs may be delayed
beyond the year 2000, given the schedules established by the SFA, but
will work with the Councils to implement revised definitions of
overfishing and rebuilding plans as soon as possible. NMFS has clearly
communicated to the Councils that section 108(b) of the SFA requires
them to amend their FMPs not later than 24 months after enactment of
the SFA (October 11, 1996) to bring them into conformance with the
provisions of sections 303(a)(1), (5), (7) and (9)-(14) of the
Magnuson-Stevens Act. Section 303(a)(10) specifically requires the
specification of objective and measurable criteria for identifying when
the fishery to which the FMP applies is overfished, and section 304(e)
requires the submission of rebuilding plans for stocks that are
determined to be overfished.
On September 30, 1997, NMFS submitted a report to Congress that
identified those stocks in their areas of jurisdiction that are
overfished or approaching an overfished condition, based on existing
overfishing definitions, as required by the Magnuson-Stevens Act. The
Councils were notified that they have 1 year within which to submit
rebuilding programs for those stocks identified as overfished.
Therefore, the Councils are to be simultaneously working on both new
definitions of overfishing and rebuilding plans, as necessary. As new
overfishing definitions are approved, the status of stocks will need to
be reassessed against those new criteria. It is likely that some stocks
that were not listed as overfished when judged against the overfishing
definitions in place in September 1997 will be determined to be
overfished when compared to the criteria in new definitions. If and
when that occurs, NMFS will notify the affected Council(s) and the
public of that fact and the Council(s) will have 1 year from that date
in which to submit a rebuilding plan.
Comment 18. Two commenters suggested that the guidelines elaborate
on the relationship between environment/habitat and the specified time
period for rebuilding. In particular, the commenters wondered what is
meant by the term ``environmental conditions,'' whether remedial action
would still be required in the event that environmental conditions
cause the minimum possible rebuilding time to exceed 10 years, whether
MSY should be re-estimated if habitat capacity changes, and, if so,
whether remedial action could appropriately address habitat issues as
well as fishing mortality.
Response. Except for a slight revision to Sec. 600.310(d)(4)(iii),
as described below, no change was made. ``Environmental conditions''
means those biological or physical components of the marine ecosystem
with which the overfished stock or stock complex interacts (also see
revised Sec. 600.310(e)(4)(ii)). Council action is required whenever a
stock or stock complex is determined to be overfished, regardless of
whether it is possible to achieve rebuilding within 10 years. Regarding
MSY, it is clear from the definition in Sec. 600.310(c)(1)(i) that MSY
is conditional on the state of the environment, which includes habitat.
As noted in Sec. 600.310(d)(4)(ii), environmental changes that affect
the long-term productive capacity of the stock or stock complex require
re-specification of one or more status determination criteria. As noted
in Sec. 600.310 (d)(4)(iii), Councils should recommend restoration of
habitat in cases where manmade environmental changes are partially
responsible for a stock or stock complex being in an overfished
condition. In addition, Sec. 600.310(d)(4)(iii) has been revised to
reference the Councils' responsibilities in cases where essential fish
habitat is concerned.
Comment 19. Several commenters objected to the proposed requirement
that each FMP specify, to the extent possible, both a maximum fishing
mortality threshold and a minimum stock size threshold for each stock
or stock complex covered by that FMP (Sec. 600.310(d)(2)).
Response. No change was made. Section 303(a)(10) of the Magnuson-
Stevens Act requires the specification of status determination
criteria, and sections 304(e)(1) and 304(e)(2) state that these
criteria are to be used for the purpose of determining which fisheries
are in need of action ``to end overfishing'' and ``to rebuild affected
stocks of fish.'' The only way that both needs (``end overfishing'' and
``rebuild affected stocks'') can be addressed is if the status
determination criteria include measures appropriate to each--namely,
one measure pertaining to the rate of fishing mortality and another
measure pertaining to the size of the stock. That is, if only a maximum
fishing mortality threshold were specified, it would be possible to
determine which fisheries require action to end overfishing, but it
would not be possible to determine which fisheries require action to
rebuild affected stocks. Conversely, if only a minimum stock size
threshold were specified, it would be possible to determine which
fisheries require action to rebuild affected stocks, but it would not
be possible to determine which fisheries require action to end
overfishing.
Comment 20. Several commenters objected to the proposed provision
in Sec. 600.310(d)(2)(ii) that would allow the minimum stock size to be
as low as 50 percent of the MSY stock size, conditional on an
appropriate choice of MSY control rule. These commenters felt uniformly
that Congress intended for any stock or stock complex below its MSY
level to be considered overfished, and suggested that a stock size
threshold be set at 80 percent (one commenter said ``at or above 80
percent'') of the MSY stock size. The commenters were divided over
whether this reference point should constitute a minimum threshold or
an ``interim'' threshold, where an interim threshold was defined as a
point that ``should trigger a review of what remedial action is
necessary to prevent the decline from continuing.''
Response. No change was made. A key question is whether Congress
intended for each stock or stock complex that temporarily falls below
its MSY level to be considered overfished, even if the rate of fishing
mortality on that stock or stock complex has consistently been within
the limit allowed by the MSY control rule. If the answer is ``yes,''
then any threshold below the MSY stock size is unacceptable: For
example, a threshold set at 80 percent of the MSY stock size is just as
unacceptable as one set at 50 percent of the MSY stock size. However,
NMFS believes it is important to remember that natural variability is
an inherent part of fishery systems, and that any stock or stock
complex managed for MSY will sooner or later
[[Page 24219]]
fall below its MSY level, though only temporarily.
Because the Magnuson-Stevens Act explicitly allows OY to be as high
as MSY, NMFS believes that Congress must have intended to allow stocks
to be managed such that stocks were capable of producing MSY, meaning
that Congress must have been willing to accept the consequence that
some stocks would fall below their respective MSY producing levels
temporarily. Given this interpretation, the question becomes, ``How low
is too low?'' While the fishery science literature does not provide a
definitive answer to this question, NMFS believes that a prudent rule
can be established as follows: Two of the best known models in the
fishery science literature find that, on average, the stock size at MSY
is approximately 40 percent of the stock size that would be obtained if
fishing mortality were zero (the pristine level). (The actual values
are 36.8 percent (Gompertz-Fox model) and 50 percent (Verhulst-Schaefer
model). Also, the fishery science literature contains several
suggestions to the effect that any stock size below about 20 percent of
the pristine level should be cause for serious concern. In other words,
a stock's capacity to produce MSY on a continuing basis may be
jeopardized if it falls below a threshold of about one-fifth the
pristine level. Expressing this threshold in terms of the stock size at
MSY results in a minimum stock size threshold equal to 50 percent of
the MSY level. A stock at 50 percent of its MSY level would typically
be close to 20 percent of its pristine level, a threshold below which
it must not be allowed to fall.
Of course, the guidelines do not prohibit the Councils from setting
as many ``interim'' stock size thresholds as they like, so long as
these are above the minimum stock size threshold. However, it would be
a mistake for the guidelines to require use of an interim stock size
threshold set at 80 percent of the MSY level in all cases, insofar as
some stocks may be incapable of rebuilding to the MSY level from such a
threshold within the statutory time period, depending on the status and
biology of the stock, the stock's interactions with other components of
the marine ecosystem, and the choice of MSY control rule.
Comment 21. Several commenters suggested that the guidelines
contain an explicit prohibition against ``short-term'' or ``pulse''
overfishing.
Response. No change was made. Taken together,
Sec. 600.310(d)(2)(i), (e)(3), and (e)(3)(i) already indicate that
exceeding the maximum fishing mortality threshold for even a single
year is not permissible, except as provided under Sec. 600.310(d)(6).
If ``short-term'' or ``pulse'' overfishing means that the maximum
fishing mortality threshold would be exceeded for a period of at least
1 year, then the guidelines clearly prohibit these practices.
Comment 22. Two commenters suggested that the minimum stock size
threshold should always be set equal to the MSY stock size. However,
one of these commenters further suggested that it should be permissible
for a stock or stock complex to fall slightly below its minimum stock
size threshold on an occasional basis without being considered
overfished.
Response. No change was made. Setting the minimum stock size
threshold equal to the rebuilding target means that natural variability
will frequently cause stocks to be classified as ``overfished,'' even
if no overfishing ever occurs. The suggestion to permit occasional,
slight violations of the minimum stock size threshold would require
establishing criteria for determining the acceptable rate and extent of
threshold violation, which would undoubtedly be a problematic exercise.
Comment 23. Several commenters suggested that the guidelines should
incorporate, to the maximum extent possible, recent strides made in the
application of the precautionary approach, such as those contained in
the United Nations Treaty on Straddling Stocks and Highly Migratory
Species.
Response. No change was made. The guidelines are already very much
in step with, and in some cases ahead of, recent strides made in the
application of the precautionary approach in the international arena.
In addition, as noted in the preamble of the proposed rule, further
technical guidance regarding specification of a precautionary approach
will be provided by NMFS in the near future.
Comment 24. One commenter suggested that the guidelines should
require all MSY estimates (both point estimates and ranges) and OY
specifications (both single values and ranges) to be accompanied by
confidence intervals, which the commenter felt to be a basic component
of a risk-averse approach. The commenter suggested that such confidence
intervals could be qualitative in nature, if necessary.
Response. No change was made. NMFS agrees that a risk-averse
approach is highly desirable, both for estimation of MSY and for
specification of OY, but does not believe that requiring confidence
intervals for these quantities is necessarily the best or only way to
implement such an approach. For example, if point estimates are
determined in an explicitly risk-averse manner, the addition of
confidence intervals could prove more confusing than helpful,
especially to a nontechnical audience. However, in those cases where
Councils feel that confidence intervals would be helpful,
Sec. 600.310(c)(2)(ii) already gives the Councils explicit latitude to
use them. The same paragraph also requires that appropriate
consideration of risk be incorporated into estimates of MSY, while
Sec. 600.310(f)(5)(iii) states that criteria used to set target catch
levels (such as OY) should be explicitly risk averse, so that greater
uncertainty regarding the status or productive capacity of a stock or
stock complex corresponds to greater caution in setting target catch
levels.
Comment 25. One commenter suggested that a precautionary approach
is not appropriate for a management target such as OY.
Response. No change was made. Contrary to this comment, NMFS
believes a precautionary approach is particularly appropriate for a
management target such as OY. If management is effective, harvests will
typically be close to the target level, so if the precautionary
approach is to have a substantial impact on fishery management, it
needs to be applied to management targets at least as much as to
management thresholds.
Comment 26. One commenter suggested that the description of the
precautionary approach should state that lack of information should not
prevent a Council from taking reasonable steps to address fishery
resource problems.
Response. No change was made. This suggestion is already implicit
in Sec. 600.310(f)(5)(iii), which states that greater uncertainty
(i.e., greater lack of information) should correspond to greater
caution in setting target catch levels. NMFS believes that prudent
decision-making in the face of uncertainty is a cornerstone of any
precautionary approach.
Comment 27. Two commenters expressed concern over the target stock
size for rebuilding. One commenter suggested that the target should be
the OY stock size and felt that the guidelines erred in treating the
MSY stock size as though it were the target. The other commenter
suggested that the target ought to be the MSY stock size and felt that
the guidelines erred in treating the MSY stock size as though it were a
threshold.
[[Page 24220]]
Response. The Magnuson-Stevens Act, in section 3(28)(C), implies
strongly that the MSY stock size is at least an initial target for
rebuilding. Of course, to the extent that OY is lower than MSY and that
management is generally successful in achieving OY on a continuing
basis, the OY stock size will be greater than the MSY stock size; thus
the ultimate target level (OY stock size) will be greater than the
initial target level (MSY stock size). The guidelines are consistent in
treating the MSY stock size as a constraint rather than as a threshold.
Comment 28. Several commenters suggested that the method for
calculating rebuilding time requires clarification. Assuming that some
sort of estimation is involved in calculating rebuilding time, a number
of possibilities present themselves. Does ``rebuilding time'' refer to
the expected rebuilding time, the median rebuilding time, some
percentile of rebuilding times, or something else?
Response. No change was made. The commenters are correct that there
are a large number of ways to calculate rebuilding time. In addition to
statistics pertaining to the time required to reach some specified
stock size, other possibilities include various statistics pertaining
to the stock size achieved at some specified future time--for example,
the expected stock size, the median stock size, or some percentile of
stock sizes. While these choices pose potentially substantive issues,
NMFS believes there are a number of reasonable ways to calculate
rebuilding time that would be consistent with the provisions of the
national standard 1 guidelines. It is beyond the scope of these
guidelines to establish a single method to be used in all cases.
However, it is possible that the forthcoming technical guidance
regarding the precautionary approach (as described in the preamble to
the proposed rule) could address these issues.
Comment 29. One commenter suggested that the maximum fishing
mortality threshold should be greater than the fishing mortality rate
associated with the chosen MSY control rule. The commenter noted that
this would be consistent with the approach taken by Rosenberg et al.
(1994)(see preamble to the proposed rule).
Response. No change was made. The commenter is correct insofar as
the report by Rosenberg et al. (1994) interpreted the former Magnuson
Act as taking overfishing to be a rate of fishing mortality somewhat
greater than the rate associated with any MSY control rule. However, it
is clear that the Magnuson-Stevens Act takes a different, more
conservative, approach by linking overfishing much more directly to
MSY. Allowing the maximum fishing mortality threshold to exceed the
fishing mortality rate associated with the MSY control rule would thus
be inconsistent with the Magnuson-Stevens Act.
Comment 30. One commenter felt that the proposed procedural
requirements for interim measures in Sec. 600.310(e)(5) are too
burdensome. The commenter stated that, under the proposed guidelines,
the Councils would essentially have to develop the same measures as
part on an FMP or amendment for implementation on a more permanent
basis, before recommending the measures as interim measures. Instead,
the Councils should be allowed to recommend an interim action whenever
there is a substantial conservation benefit to be gained.
Response. No change was made. NMFS agrees that actions to address
overfishing should not be constrained unnecessarily. Section 304(e)(6)
of the Magnuson-Stevens Act states that interim measures can be
requested by a Council during its development of an FMP, an FMP
amendment, or proposed regulations to address overfishing as required
under section 304(e), until such measures can be replaced by such FMP,
amendment, or regulations. Section 305(c)(3)(B) of the Magnuson-Stevens
Act establishes time constraints on interim actions and makes
extensions contingent upon the Council's actively preparing an FMP, FMP
amendment, or proposed regulations to address overfishing on a
permanent basis. Section 600.310(e)(6) of the guidelines reflects these
statutory requirements.
Comment 31. One commenter objected to statements in
Sec. 600.310(f)(1)(ii) and (f)(5)(i) to the effect that OY cannot be
achieved on a continuing basis if status determination criteria are not
met. The commenter contended that the purpose of the status
determination criteria is to measure FMP performance, not to control
fishing, and that the present wording of the guidelines might preclude
a Council from taking a gradual approach toward bringing fishing
mortality into conformity with the maximum fishing mortality threshold.
Response. No change was made. NMFS believes that status
determination criteria are indeed intended to control fishing. The
commenter is correct insofar as the guidelines would preclude a Council
from taking a gradual approach toward bringing fishing mortality into
conformity with the maximum fishing mortality threshold. Once a Council
is notified that overfishing is occurring, it must take action within 1
year to end overfishing. A gradual approach is not permitted.
Comment 32. One commenter suggested that the guidelines should
include a clear statement to the effect that, whenever overfishing is
occurring, remedial action is required.
Response. No change was made. The statement already appears in
Sec. 600.310(e)(3)(i).
Comment 33. One commenter suggested that the guidelines should
encourage adoption of target harvest levels set safely below MSY.
Response. No change was made. The statement already appears in
Sec. 600.310(f)(5)(i).
Comment 34. Several commenters suggested that Sec. 600.310(f)(2)(i)
and (f)(2)(ii) under emphasized the benefits to the Nation accruing
from food production relative to those accruing from recreational
opportunities. Two commenters suggested that contributions to the
surrounding economies ought to be listed as a benefit accruing from
food production, as well as from recreational opportunities. One
commenter suggested that the guidelines seemed to equate recreational
fishing with non-consumptive use and commercial fishing with
consumptive use, giving the impression that recreational fishing does
not contribute to food production. One commenter was concerned
regarding the vague nature of the ``other non-consumptive activities''
that were suggested to be ``important to the national, regional, and
local economies'' in Sec. 600.310(f)(2)(ii).
Response. Sections 600.310(f)(2)(i) and (f)(2)(ii) have been
revised. NMFS believes that neither the benefits to the Nation accruing
from food production nor those accruing from recreational opportunities
should be under emphasized. Contributions to the national, regional,
and local economies are now listed as benefits accruing from both food
production and recreational opportunities. Contrary to one of the
comments cited, the proposed rule explicitly acknowledged the
contribution of recreational fishing to food production; this
acknowledgment is retained in the revised language. The non-specific
reference to ``other non-consumptive activities'' has been deleted from
Sec. 600.310(f)(2)(ii), insofar as this paragraph is not intended to
provide an exhaustive list of non-consumptive uses.
Comment 35. Several commenters disagreed with the proposed
guidelines' allowance of an exception to the requirement of preventing
overfishing,
[[Page 24221]]
in the case of one stock component of a mixed-stock fishery. They said
that the legislative history of the SFA supports elimination of this
exception, and challenged NMFS' authority to retain it.
Response. The legislative history of the SFA does not directly
address this issue. The statute defines ``overfishing'' and
``overfished'' in terms of the capacity of a fishery to produce MSY.
National standard 1 requires conservation and management measures to
prevent overfishing while achieving the OY from each fishery. Section
304(e) of the Magnuson-Stevens Act requires the Secretary to identify
fisheries that are being overfished. The Council must then take steps
to end overfishing in the fishery.
A ``fishery'' is defined in the Magnuson-Stevens Act as ``one or
more stocks of fish which can be treated as a unit for purposes of
conservation and management.'' In a mixed-stock fishery, several stocks
are harvested together and are managed as a unit. From the SFA's focus
on ``fisheries,'' and the fact that it did not amend national standard
1, NMFS infers that Congress did not mean to eliminate entirely the
long-standing practice of allowing a mixed-stock fishery to continue,
if certain conditions specified in the guidelines were met.
To respond to concerns that this exception might become a huge
loophole, the proposed guidelines considerably narrowed this exception
from the existing guidelines. To allow overfishing of one stock in a
mixed-stock fishery, a Council must meet three stringent conditions:
(1) It must demonstrate by analysis that the action will result in
long-term net benefits to the Nation; (2) it must demonstrate by
analysis that a similar level of benefits cannot be achieved by
modifying fleet behavior, gear selection or configuration, or other
technical characteristic so that no overfishing would occur; and (3) it
must ensure that the action will not cause any species or
evolutionarily significant unit thereof to require protection under the
Endangered Species Act.
The exceptions for mixed-stock fisheries have thus been
significantly constrained by requiring that (1) demonstrated net
benefits to the Nation be long-term, rather than short-term; (2) an
analysis be performed to consider technical or operational alternatives
to overfishing; and (3) the stock or stock complex not be driven to a
dangerously low level.
NMFS believes the guidelines strike the correct balance between
preventing a stock from becoming overfished and achieving OY for the
fishery as a whole.
Comment 36. The notice reopening the comment period asked whether
overfishing evaluations and rebuilding programs should be focused on
individual stocks, or on a fishery. In response, many commenters
pointed out that a stock-by-stock approach is the only scientifically
justified method. Overlooking the condition of each stock is also
inconsistent with Congressional intent to rebuild all fishery
resources. Other commenters wanted to focus on fisheries, as part of an
ecosystem approach to management. A mixed stock fishery should be
managed as a unit, and should not be closed just because one component
of the fishery is overfished.
Response. A fishery comprised of many stocks cannot be judged as
overfished or not; only for a stock or stock complex of fish can
measurable, objective criteria of overfishing be established, as
required by the SFA. The same concern applies to judging whether a
fishery has been rebuilt; biologically, that can be determined only on
a stock or stock complex basis. The Secretary's first report to
Congress (September 30, 1997, under section 304(e)) identified stocks,
not fisheries, as overfished.
Focusing on stocks as a scientific endeavor is not inconsistent
with managing a fishery as a unit. As explained in the response to
comment 35 under national standard 1, identification of a stock as
overfished does not necessarily mean that the entire fishery in which
it occurs must be severely constrained while that stock is rebuilt.
Scientific judgments on overfishing and rebuilding must be made, to the
extent practicable, on a stock-by-stock basis, but management judgments
on optimizing benefits can be made on the fishery as a whole. In other
words, managers should be aware of the biological status of each stock,
and should also be required to justify the continuation of overfishing
of a stock in a mixed-stock fishery on the grounds of maximizing
benefits.
Comment 37. One commenter suggested that a discussion of
``acceptable biological catch'' (ABC) be included in the guidelines, as
in the 1989 version. The commenter felt that ABC is used by most, if
not all, of the Councils and in many FMPs.
Response. No change was made. NMFS believes that ABC, as typically
used, is an example of the ``annual target harvest levels that vary
with stock size'' described in Sec. 600.310(f)(4)(ii). Given that the
term ``acceptable biological catch'' does not appear in the Magnuson-
Stevens Act (although ``allowable biological catch'' is used once,
without definition, in section 303(b)(11)), NMFS does not believe that
it is necessary to reference this additional term by name in the
guidelines.
Comment 38. One commenter objected to specifying minimum stock size
threshold as a function of MSY stock size, as in
Sec. 600.310(d)(2)(ii). The commenter was concerned that extreme
changes in environmental conditions could lead to extreme changes in
carrying capacity and could result in a mismatch between the minimum
stock size threshold and the stock's new productive capacity.
Response. No change was made. Section 600.310(d)(4)(ii) requires
that status determination criteria be respecified if changes in
environmental conditions cause the long-term productive capacity of the
stock or stock complex to change. (See also the response to comment 18
for national standard 1).
Comment 39. One commenter objected to the statement in
Sec. 600.310(f)(5)(i) that continual harvest at a level above OY would
violate national standard 1, even if no overfishing resulted. The
commenter felt that it is both physically and fiscally impossible to
assure that quotas are not systematically exceeded.
Response. No change was made. NMFS believes that the national
standard 1 mandate for ``achieving, on a continuing basis, the OY from
each fishery'' should not be interpreted to mean, ``achieving, on a
continuing basis, the OY or some greater amount of harvest from each
fishery.'' By definition, MSY is the greatest amount of harvest that
could be achieved from a fishery on a continuing basis. Presumably, the
reason that the Magnuson-Stevens Act makes explicit provision for
setting OY at a level below MSY is that, where justified on the basis
of relevant economic, social, or ecological factors, continual harvest
at a higher level (such as MSY) is to be avoided. NMFS' experience has
been that it is indeed possible to assure that quotas are not
systematically exceeded. If, however, a Council finds that a systematic
amount of harvest overrun is inevitable, quotas should be reduced by
that amount.
Comment 40. Several commenters suggested that the guidelines list
examples of management actions required under a variety of fishing
mortality rates and stock sizes.
Response. No change was made. NMFS believes there are so many
variables and contingencies specific to each fishery that it would not
be meaningful to list examples of the type
[[Page 24222]]
requested. In general, though, it is clear that a Council's primary
control will be over fishing mortality. If the fishing mortality rate
on a stock or stock complex exceeds the maximum fishing mortality
threshold, it must be reduced to the extent that it no longer exceeds
that threshold, as described in Sec. 600.310(e)(3)(i) and (e)(4)(i). If
a stock or stock complex is overfished, fishing mortality must be
controlled such that the stock rebuilds to the MSY level within a time
period satisfying the statutory requirements, as described in
Sec. 600.310(e)(3)(ii) and (e)(4)(ii).
Comment 41. In discussing fisheries that have large state
components, one commenter said that states will have to cooperate to
achieve the SFA's rebuilding objectives. He recommended that the
possibility of preempting a state's authority over a fishery in its
waters be specified in the guidelines.
Response. The criteria and procedures for Federal preemption of
state authority are set out in section 306(b) of the Magnuson-Stevens
Act. In addition, NMFS would also comply with applicable requirements
of Pub. L. 104-4, the Unfunded Mandates Reform Act of 1995, and E.O.
12612, Federalism. NMFS sees no reason to reiterate these requirements
in the guidelines, but agrees that consultation and state cooperation
will be essential in meeting rebuilding schedules for some fisheries.
Comment 42. One commenter stated that the guidelines should clearly
point out that the SFA imposes the obligation to establish a strong
domestic plan to rebuild stocks, within 10 years if biologically
possible, and that obligation applies to international as well as
domestic fisheries.
Response. NMFS agrees that the obligation to establish a strong
domestic plan to rebuild stocks, within 10 years if biologically
possible, is a requirement of the SFA, regardless of the species
involved. The guidelines, as proposed, reflect this view. There is no
exception provided in the guidelines for any species or fishery beyond
that provided in the SFA (section 304(e)(4)(C)). NMFS notes that the
SFA requires that any rebuilding program for fisheries managed under an
international agreement must reflect traditional participation in the
fishery, relative to other nations, by fishermen of the United States.
NMFS does not agree that additional clarifying language is necessary in
the guidelines.
Comment 43. With respect to highly migratory species such as tunas
and billfish, one commenter believed expressions of yield and
overfishing are meaningless on local scales. The commenter questioned
what is required of the Councils and what the limits of authority are
regarding ending overfishing and rebuilding overfished stocks in areas
where the majority of the exclusive economic zone (EEZ) stock/fishery
occurs in state waters (e.g., onaga) or in international waters (e.g.,
armorhead) where no agreements exist.
Response. The Councils have the responsibility under SFA to do all
they can to eliminate overfishing and to rebuild overfished stocks. The
Councils are limited in their authority and their ability to correct
overfishing in many cases. However, this limitation should not prevent
the Councils from doing everything within their authority and
capabilities to address overfishing. (See also the response to comment
33 under national standard 1.)
Comment 44. One commenter was concerned regarding NMFS' proposed
requirement to implement regulations to end (or prevent) overfishing
and to rebuild (or sustain) affected fish stocks that are considered to
be overfished or approaching an overfished condition. The commenter
objected to this provision's application to migratory fish stocks with
international harvesters, especially when the majority of the harvest
is taken by foreign fleets.
Response: The SFA provisions concerning overfishing and rebuilding
migratory fish stocks are not restricted to those situations where the
U.S. harvest is a majority of the total fishing mortality. The SFA
does, however, recognize the international aspects of migratory
species, and provides that the period for rebuilding may exceed 10
years if management measures under an international agreement so
dictate. And, as noted in the response to comment 33 under national
standard 1, the rebuilding program for fisheries managed under an
international agreement must reflect traditional participation in the
fishery, relative to other nations, by fishermen of the United States.
The guidelines reflect these provisions of the SFA.
Comment 45. One commenter said the proposed rule states that all
fishing mortality must be counted against OY, including that resulting
from bycatch, research fishing, and any other fishing activities,
although the Magnuson-Stevens Act (section 3(15)) defines fishing in a
way that does not include scientific research activity that is
conducted by a scientific research vessel.
Response. The proposed guidelines have been revised to reflect the
fact that the term ``fishing'' does not include any scientific research
activity that is conducted by a scientific research vessel. In
Sec. 600.310(f)(4)(iii), the words ``research fishing'' have been
changed to ``scientific research.'' However, the fishing mortality that
occurs during scientific research requires estimation and inclusion in
the accounting of all harvesting mortality to which stocks are
subjected.
Comment 46. One commenter stated that overfishing criteria do not
provide any explicit treatment for hatchery stocks. The commenter
assumed that hatchery stocks cannot be aggregated with wild stocks for
the purposes of establishing overfishing criteria.
Response. NMFS agrees with the commenter's assumption that hatchery
stocks cannot be aggregated with wild stocks for purposes of
establishing overfishing criteria.
National Standard 2
Comment 1. One commenter suggested that NMFS should encourage the
policy that fisheries management must be based on scientific facts.
Response. NMFS agrees, and recognizes that additional factors, such
as social and economic impacts, must be taken into consideration in
formulating management measures.
Comment 2. One commenter stated that the guidelines for national 2
should expressly address data on bycatch and safety.
Response. NMFS agrees and has amended Sec. 600.315(e)(1)(ii) to
include safety. That section already includes a reference to bycatch.
Comment 3. One commenter stated that data reporting requirements in
national standard 2 are too burdensome and will inhibit fisheries
management.
Response. Section 301(a)(2) of the Magnuson-Stevens Act requires
that conservation and management measures be based on the best
scientific information available. The minimum information sets required
in FMPs are described in section 303(a) and (b) of the Magnuson-Stevens
Act. The guidance provided in Sec. 600.315 summarizes those statutorily
required minimum requirements. Moreover, the Paperwork Reduction Act
requires NMFS to minimize the burden of its information collection by
ensuring the information will have practical utility.
Comment 4. Two commenters suggested there should be more explicit
guidance under national standard 2 regarding the data requirements
related to fishing communities.
Response. NMFS agrees. The language in Sec. 600.315(e)(1)
introductory text has been revised to clarify that Stock Assessment and
Fishery Evaluation (SAFE) reports are intended to summarize the most
recent information
[[Page 24223]]
concerning a variety of aspects of the fishery, including fishing
communities.
National Standard 4
Comment 1. One commenter suggested that the guidelines for national
standard 4 should be modified by adding: ``In all [FMPs] prepared by
any Council in a limited access fishery, all permits must be treated
equally and fairly.''
Response. No change was made. The criteria that a Council must use
in developing a limited access program are listed in the Magnuson-
Stevens Act (section 303(b)(6)). National standard 4 requires that all
allocations, including limited access permits, be handled fairly and
equitably.
Comment 2. One commenter suggested that national standard 4 should
contain a strict prohibition that prevents any one state (such as
Alaska) from being granted (by any Council) monopoly control of
fisheries management in Federal waters where fishermen from several
states harvest under an approved FMP.
Response. The Magnuson-Stevens Act provides that a state may
regulate a fishing vessel outside the boundaries of that state (section
306(a)(3)). However, management measures developed by a state pursuant
to this authority may not discriminate between residents of different
states. Mechanisms exist for ensuring that such authority does not
result in unfair treatment. For example, two North Pacific Fishery
Management Council FMPs that defer the majority of management authority
to the State of Alaska (the crab and salmon FMPs) have mechanisms that
provide for individuals to challenge the State's management actions.
Comment 3. One commenter stated that fishing sectors such as
subsistence fishing and aboriginal people indigenous to the region
should be added to the commercial, recreational, and charter fishing
sections identified.
Response. No change was made. The Magnuson-Stevens Act already
requires that all fishermen should be treated fairly and equitably.
National Standard 5
Comment 1. Several commenters stated that the guidelines do not
adequately reflect the revision from ``promoting economic efficiency''
to ``considering economic efficiency'' in national standard 5,
particularly in the use of the term ``encouraging'' relative to
efficient utilization.
Response. NMFS agrees that the word ``encouraging'' should be
replaced with ``considering,'' to make this standard consistent with
the intent of Congress; Sec. 600.330(b)(1) has been revised
accordingly. The reference to limited access systems is only an example
of a program that may contribute to efficiency. No statements or
references are made that limited access is a preferred alternative to
increase efficiency.
Comment 2. One commenter stated that the use of the phrase ``least
cost to society'' in the national standard 5 guideline is
inappropriate, because achieving long-term benefits may require costs
that are greater than the least available.
Response. The use of this phrase is similar to its use in the
national standard 7 guideline, which refers to minimizing costs. The
phrase does not mandate that the alternative with the lowest cost be
selected. Rather, it is meant to provide guidance that efficient
utilization of resources is a way to achieve benefits for the Nation,
while limiting the costs to society. Analysis of alternative management
measures, including those that would offer greater efficiency, are
expected to estimate the relative benefits and costs of those measures.
National Standard 7
Comment 1. One commenter suggested that the Councils should be
required to prepare an FMP for any fishery that has recreational and/or
commercial catch.
Response. The Magnuson-Stevens Act did not impose such a
requirement. The national standard guidelines do not excuse the
Councils from developing FMPs that are necessary or appropriate. The
guidelines prior to the SFA stated that an FMP should be prepared only
for fisheries in need of management. NMFS believes no change is
necessary, because requiring an FMP for every fishery could redirect
critical funds needed for resource surveys, data collection, data or
impact analyses, or other essential activities, but result in little or
no incremental benefit to the Nation.
National Standard 8
Comment 1. One commenter stated that the definition of ``fishing
communities'' needs to be amended to include all components of the
recreational industry.
Response. No change was made. The definition of ``fishing
community'' in the guidelines already includes recreational fishing or
directly related fisheries-dependent services and industries.
Comment 2. One commenter stated that ``sustained participation''
referred to in this standard does not guarantee any specific rights,
practices, or access to a specific fishery. Two other commenters stated
that the intent of Congress in reference to ``sustained participation''
was not to cause fishermen to change gear or species, particularly
since some communities are dependent on specific gears and/or
fisheries.
Response. No change was made. ``Sustained participation'' means
continued access to the fishery within the constraints of the condition
of the resource. This standard requires that the importance of fishery
resources to a community be taken into account in conservation and
management measures; however, the long-term conservation and/or
rebuilding of stocks may require limits on particular gears and the
harvest of specific stocks.
Comment 3. One commenter stated that proposed Sec. 600.345(b)(2)
captures the intent of Congress that this standard does not allocate
resources to particular communities, while Sec. 600.345(c)(3) has
implicitly allocative language in its focus on ``levels of dependence
on and engagement in'' the fishery.
Response. No change was made. The language in Sec. 600.345(c)(3)
reflects the meaning of the Magnuson-Stevens Act, which refers to
communities being ``substantially engaged'' and ``substantially
dependent.'' The levels of dependence on and engagement in a fishery
need to be ascertained in order to identify communities, whether
located in rural or metropolitan areas, that may be potentially
affected. Further, dependence, engagement, and sustained participation
are not measured solely in terms of the percent of fishing activity in
relation to the entire economic base of the community; there are other
social, cultural, and economic assessments specifically focused on the
harvesting, processing, and fishery-support industries.
Comment 4. One commenter stated that, in Sec. 600.345(b) and (c),
the definitions and explanations are so broad as to render them useless
in identification of fishing communities.
Response. NMFS disagrees. The guidance reflects the language and
intent of Congress to be inclusive of fishing communities. The
definitions and explanations in Sec. 600.345(b) and (c) are acceptable
operational definitions for use by social scientists and economists in
undertaking data gathering and analysis.
Comment 5. One commenter stated that, in Sec. 600.345, all
components of the recreational fishing industry in fishing communities
should be described and analyzed in the same manner and depth as
commercial fishery components.
[[Page 24224]]
Response. NMFS agrees. The guidance in the national standard
guidelines covers all sectors.
National Standard 9
Comment 1. Several commenters stated that the guidelines as written
diverged significantly from the statute and Congressional intent and
require a substantial rewriting. One commenter was concerned that the
Councils would not have to take action to amend their FMPs to minimize
bycatch and would still be found to be in compliance with national
standard 9.
Response. NMFS disagrees. The Councils and NMFS must review all
existing FMPs and all future FMPs and FMP amendments for compliance
with national standard 9. Existing FMPs will be amended, if necessary,
to ensure compliance with this standard. The Councils are required to
re-examine the conservation and management measures contained in their
FMPs for ways to reduce bycatch below current levels. In addition, the
Councils must revisit the measures periodically to ensure that bycatch
is reduced as much as practicable. No change in the guidelines is
necessary.
Comment 2. Several commenters stated that the SFA sent a very clear
message that bycatch is a serious problem and that the Councils are
required not to study the problem, as suggested in the proposed
guidelines, but to amend FMPs to include measures to ``minimize bycatch
and to minimize the mortality of such bycatch that cannot be avoided.''
Response. NMFS agrees that bycatch is a problem in many of the
Nation's fisheries. The amendments to the Magnuson-Stevens Act require
that conservation and management measures minimize bycatch to the
extent practicable and, to the extent bycatch cannot be avoided,
minimize the mortality of such bycatch. The requirement is clearly not
discretionary. NMFS disagrees that the guidelines only require the
Councils to study the bycatch problem; the Councils must take action to
minimize bycatch and bycatch mortality to the extent practicable. No
change in the guideline is necessary (also see the response to comment
1 under national standard 9).
Comment 3. Several commenters observed that national standard 9
recognizes bycatch as an integral component of the total fishery, with
biological if not economic value. The commenter stated that this
national standard encourages the redeployment, or perhaps the
elimination, of destructive, non-selective gears.
Response: NMFS agrees. The Councils have a range of options
available to them to satisfy the requirements of national standard 9;
the commenter mentioned only two of the options available. However, the
legislative history of the SFA includes a floor statement by
Congressman Young that ``it is not the intent of Congress that the
[Councils] ban a type of fishing gear or a type of fishing in order to
comply with this standard.''
Comment 4. One commenter observed that national standard 9 applies
not only to commercially valuable species, but also to all finfish,
shellfish, and invertebrate species with no commercial value.
Response. NMFS agrees. The definition of ``fish'' in the Magnuson-
Stevens Act includes finfish, shellfish, and invertebrate species, and
all other forms of marine animal and plant life except marine mammals
and birds; by extension, bycatch applies to these forms of marine life.
Comment 5. One commenter stated that the guidelines are not clear
on exactly what is required for compliance with this national standard
and what the consequences would be of not meeting that requirement. The
commenter also suggested that such requirements would likely not be
followed because they are too time/staff/data intensive. Another
commenter stated that the guidelines suggest that measures to minimize
bycatch need not be implemented if they are determined to be
``inconvenient'' with respect to, for example, ``changes in fishing,
processing, disposal, or marketing costs,'' or ``changes in fishing
practices and the behavior of fishermen.''
Response. The Secretary is required to ensure that all FMPs are in
compliance with the national standards. FMPs or FMP amendments that are
not in compliance will not be approved. Inconvenience is not an excuse;
bycatch must be avoided as much as practicable, and bycatch mortality
must be reduced until further reductions are not practicable. Adherence
to the national standards is not discretionary.
Comment 6. One commenter suggested that, in the definition of
bycatch in Sec. 600.350(c), NMFS strike the parenthetical in the
definition of bycatch and the phrase, ``or that enter commerce through
sale, barter, or trade.''
Response. The language in Sec. 600.350(c) is consistent with the
Magnuson-Stevens Act; commercial fishing, as defined in section 3(4),
``means fishing in which the fish harvested, either in whole or in
part, are intended to enter commerce or enter commerce through sale,
barter or trade.'' While the term ``sale'' is inclusive of barter and
trade, the phrase has been kept in the guidelines to ensure that there
is no ambiguity as to what is considered bycatch. NMFS believes the
parenthetical in the definition of ``bycatch'' provides useful
clarification of ``harvested in a fishery.'' No change was made.
Comment 7. Several commenters recommended removing the definition
of discard in proposed Sec. 600.350(c)(2) because they believed the
term was included by NMFS without support in the Magnuson-Stevens Act
or its legislative history. They stated that the definition is in
conflict with the law and allows the continuation of fishing methods
and practices that involve great amounts of bycatch, like roe stripping
and shark finning.
Response. The definition in Sec. 600.350(c)(2) has been removed;
however, NMFS has retained the interpretation that ``bycatch'' includes
the discard of whole fish--not the discard of unwanted parts. Nothing
in the definitions of ``bycatch'' or ``economic discards'' suggests
that the discard of unwanted parts of fish is addressed accordingly
(see the response to comment 12 under national standard 9 for a
discussion of practices such as shark finning).
Comment 8. One commenter requested that NMFS add to the last
sentence in the definition of bycatch in Sec. 600.350(c) the words ``or
Atlantic highly migratory species harvested in a commercial fishery
that are not regulatory discards and that are tagged and released alive
under a scientific tag and release program established by the
Secretary.''
Response. NMFS agrees and has added the suggested language to
Sec. 600.350(c).
Comment 9. A commenter asked whether any fish caught and sold would
be considered bycatch.
Response. According to the definition of bycatch in the Magnuson-
Stevens Act, the sale of any fish removes it from being considered
bycatch.
Comment 10. A commenter stated that fish that are ground up and
thrown overboard are not counted as discards.
Response. NMFS disagrees. Whole fish that are ground up and thrown
overboard would be considered bycatch.
Comment 11. One commenter suggested that, in Sec. 600.350(b), the
second sentence be replaced with: ``Bycatch can, in four ways, impede
efforts to protect marine ecosystems, achieve sustainable fisheries and
the full benefits that they provide to the Nation.'' The suggestion was
also made
[[Page 24225]]
that the following sentence be added to Sec. 600.350(b): ``First,
removing unknown amounts of commercial or non-commercial biomass as
bycatch affects marine ecosystems in ways that are poorly understood at
best.''
Response. The first suggestion was adopted, because sustainable
fisheries are predicated on healthy marine ecosystems. In addition,
Sec. 600.350(b) was revised to combine the concepts of increased
uncertainty concerning total fishing related mortality and the impact
of bycatch on other uses of fishery resources.
Comment 12. One commenter stated that portions of fish not used or
retained (e.g., finned sharks) are incidental catch (and are therefore
bycatch). Other commenters stated that sharks could be harvested for
fins and discarded without being counted as discards.
Response. The Magnuson-Stevens Act does not define incidental
catch; however, it defines ``bycatch'' as fish that are harvested in a
fishery, but that are not sold or kept for personal use. The Magnuson-
Stevens Act does not specify that the entire animal or plant must be
sold or kept for personal use. This does not mean, however, that
wasteful practices should not be of concern, nor that they may not be
restricted by the Councils on some other basis. The issue of how much
of a fish should be retained is a utilization issue, which is distinct
from the bycatch issue.
Comment 13. One commenter stated that damaged and/or mutilated
(e.g., shark-bitten) target species that are discarded are bycatch.
Response. NMFS agrees. Such fish are considered bycatch if they are
not sold or kept for personal use.
Comment 14. Economic discards of target species, such as tunas
during times of market surplus, including dumping of fish on land, are
bycatch.
Response. NMFS agrees. Such discards are considered bycatch.
Comment 15. One commenter observed that the Magnuson-Stevens Act's
definition of bycatch does not mention unobserved fishing mortality and
recommended that the parenthetical inclusion of unobserved fishing
mortality in the definition of bycatch in Sec. 600.350(c) of the
regulations should be removed.
Response. NMFS disagrees. The statute does not limit Council
actions only to observed bycatch. Unobserved fishing-related mortality
is implicitly included in the definition because it constitutes a
harvest of fish that are not sold or kept for personal use. NMFS notes,
however, that there is little information available on unobserved
fishing-related mortality and believes that primary emphasis should
initially be placed on minimizing observed sources of fishing-related
mortality.
Comment 16. One commenter noted that unobserved fishing-related
mortality should be given prominence in the proposed guidelines.
Response. NMFS disagrees. Given the many sources of bycatch
mortality, NMFS believes that unobserved fishing-related mortality is
sufficiently prominent in the guidelines as proposed.
Comment 17. One commenter asked how NMFS will ever assign a
poundage to unobserved mortality and what scientific basis will be used
to determine unobserved mortality.
Response. NMFS recognizes that determining unobserved fishing
mortality will be extremely difficult. However, all significant sources
of fishing-related mortality need to be considered when developing
conservation and management measures. While there are some existing
technologies that could be used to estimate unobserved fishing
mortality (e.g., video-based systems), new methods will need to be
developed. This will involve an experimental process, including
rigorous peer reviews of the results.
Comment 18. One commenter noted that the amount of discards by the
recreational fishery has a significant impact on fish stocks.
Response. NMFS agrees. Discards by recreational anglers are
considered to be bycatch unless they are specifically exempted in the
Magnuson-Stevens Act. All mortality associated with recreationally
caught fish must be considered in the determination of OY and MSY; this
is addressed in the guidelines for national standard 1.
Comment 19. One commenter observed that fish released alive in
recreational catch-and-release and tagging programs do die and should
be counted as bycatch and against OY.
Response. NMFS agrees that all bycatch mortality and mortality
attributable to exempted tagging and release programs should be
considered in determination of OY. As noted in the response to comment
25 under national standard 9, the Magnuson-Stevens Act exempts only
Atlantic highly migratory species harvested in a tag-and-release
program established by the Secretary. This is further addressed in the
guidelines to national standard 1.
Comment 20. One commenter stated that the SFA specifically excludes
recreational catches from the requirements for bycatch reduction and
avoidance. The commenter felt that a specific reference to the value of
catch-and-release fisheries under the guidelines to national standard 9
would be useful.
Response. NMFS disagrees. Fish caught and released alive under an
approved catch-and-release fishery management program are exempt from
being considered bycatch under section 3(2) of the Magnuson-Stevens Act
(see also the response to comment 21 under national standard 9).
Management regulations (e.g., minimum size limits and bag limits) that
result in the release of fish by recreational anglers are not
considered catch-and-release programs and, therefore, such catches are
considered to be bycatch, even though the fish are released alive.
Increased efforts to release recreationally caught fish in healthy
condition may partially satisfy the requirement in national standard 9
that mortality of bycatch that cannot be avoided be minimized to the
extent practicable.
Comment 21. One commenter asked what is meant by the exclusion of
``fish released alive under a recreational catch-and-release fishery''
under the bycatch definition.
Response. A definition of the term ``catch-and-release fishery
management program'' has been added to Section 600.350(c) as follows: a
catch-and-release fishery management program is one in which the
retention of a particular species is prohibited. In such a program,
those fish released alive would not be considered bycatch.
Comment 22. One commenter stated that highly migratory species in a
commercial fishery managed by the Secretary that are tagged and
released alive in the Atlantic are not considered bycatch. The same
commenter asked whether the provision also extended to Pacific highly
migratory species managed by the Western Pacific Council, and if not,
why not?
Response. NMFS agrees that the Magnuson-Stevens Act specifically
exempted fish caught in highly migratory species tag-and-release
programs in the Atlantic from being considered bycatch. This exemption
was not extended in the SFA to Pacific highly migratory programs.
Therefore, fish tagged and released in highly migratory species tag-
and-release programs in the Pacific are considered bycatch.
Comment 23. One commenter stated that definitions of bycatch as
``catch which is not retained or utilized'' and incidental catch as
``catch which is retained in whole or part but not necessarily
targeted,'' as adopted by the Western Pacific Fishery Management
Council, are not consistent with the Magnuson-Stevens Act or with the
[[Page 24226]]
proposed national standard 9 guidelines.
Response. The Western Pacific Council's definition of ``bycatch,''
though not identical, is not inconsistent with the new definition in
the Magnuson-Stevens Act. The definition of ``incidental catch'' is not
inconsistent with anything in the Act or the guidelines.
Comment 24. Several commenters disagreed with the following
statement in the preamble to the proposed guideline: ``Bycatch can be
decreased either by decreasing the catch of fish that would be
discarded or by retaining fish that would otherwise be discarded.''
They also stated that avoidance should take precedence over retention
and that retention of bycatch fails both tiers of national standard 9
in that it neither avoids nor minimizes it.
Response. NMFS agrees that priority must first be given to avoiding
bycatch to the extent possible. To the extent that it is not possible,
priority must then be given to minimizing bycatch mortality. Any
proposed conservation and management measure that does not give first
priority to avoiding the capture of bycatch species must be supported
by appropriate analyses, including determination of the net benefits to
the Nation. Section 600.350(d) introductory text has been revised
accordingly. Sections 313(i) and 405(d)(3) of the Magnuson-Stevens Act
suggest that retention and utilization are viable solutions to some
bycatch problems.
Comment 25. Several commenters stated that the proposed rule would
make national standard 9 a discretionary option for the Councils by
using the word ``should'' at the end of Sec. 600.350(d). The commenters
believed the proposed guidelines fail to require any Council to select
and implement measures to minimize bycatch.
Response. The requirements of the Magnuson-Stevens Act are not
discretionary. The Councils must consider the requirements in
Sec. 600.350(d) when evaluating conservation and management measures
relative to the national standards. To ensure that this point is made,
the word ``should'' in Sec. 600.350(d) introductory text has been
changed to ``must'' to emphasize the mandatory nature of Council
actions under this national standard.
Comment 26. One commenter stated that the proposed language for
national standard 9 neglected to include ``to the extent practicable''
when discussing reduction of mortality of bycatch that cannot be
avoided. The commenter stated that Congress explicitly recognized that
the costs of reducing bycatch at some level outweigh the benefits, and
that the Magnuson-Stevens Act does not demand that bycatch be decreased
to the point of technical feasibility, just to the point that it still
makes sense to reduce it.
Response. NMFS agrees; the guidelines already contain the language
suggested. For the purposes of this national standard, the term
``practicable'' is not synonymous with the term ``possible,'' because
not all reductions that are possible are practicable. NMFS recognizes
that in some fisheries it may not be practicable to eliminate all
bycatch and bycatch mortality.
Comment 27. One commenter stated that, as stocks approach
overfished conditions or are below their optimum levels, harvests
(including bycatch) should be limited to well below the threshold at
which there is a risk of precipitating or contributing to a decline.
Response. NMFS agrees. Bycatch mortality is a component of total
fishing mortality and must be incorporated into stock assessments. To
the extent that stock assessments include information on the types and
magnitude of bycatch, total allowable catch determinations will reflect
that information.
Comment 28. Several commenters stated that the guidelines ought to
point out specifically that economics cannot justify bycatch that has a
negative impact on the health of any stock in a multispecies fishery.
Response. NMFS agrees. The primary responsibility of the Councils
is to develop conservation and management measures that, to the extent
practicable, minimize the capture of bycatch species and that, to the
extent bycatch cannot be avoided, minimize the mortality of such
bycatch. The economic consequences of dealing with bycatch is one of
the factors that determines the extent to which it is practicable to
reduce bycatch or bycatch mortality in a particular fishery. The
determination must be based on the net benefits to the Nation resulting
from particular management measures. Language has been added to
Sec. 600.350(d) introductory text to indicate that the net benefits to
the Nation include, but are not limited to, negative impacts on
affected stocks; incomes accruing to participants in directed fisheries
in both the short and long term; incomes accruing to participants in
fisheries that target the bycatch species; environmental consequences;
non-use values of bycatch species, which include non-consumptive uses
of bycatch species and existence values, as well as recreational
values; and impacts on other marine organisms.
Comment 29. One commenter believed that, by allowing the Councils
to prioritize their actions to address bycatch, NMFS would effectively
(and unfairly) penalize those fisheries that have voluntarily collected
and submitted bycatch data. The commenter felt that bycatch reduction
should be done in a coordinated fashion, involving all harvesters.
Response. NMFS disagrees with the first part of the comment. The
collection of such data was voluntarily initiated by the fishing
industry because it was recognized that bycatch is a problem that must
be dealt with; the fishing industry is to be commended for taking
initiative in dealing with bycatch. The guidelines specifically list
activities that the Councils must undertake to satisfy the requirements
of this national standard. No fishery is exempt from the requirements.
However, for practical reasons, the Councils will have to determine
their priorities for development of management actions and the basis
for setting those priorities.
Comment 30. One commenter stated that non-selective, destructive
gear--specifically longlines, gillnets, and trawls--ought to be
specifically mentioned in the section on bycatch as gear to which
special attention ought to be paid in the development of any fishery
management measures.
Response. NMFS disagrees. The Councils will need to prioritize
their actions, not only with respect to various fisheries, but also to
various gears. The Councils will need to determine, during the
development of fishery management measures, which gears to allow and
which ones need special attention. No change in the guidelines is
necessary.
Comment 31. Several commenters suggested that SAFE reports are
important tools in minimizing bycatch and that a requirement be added
that information on the amount and type of bycatch be summarized in the
SAFE report.
Response. NMFS agrees and has added appropriate language to
Sec. 600.350(d)(2). NMFS notes that Sec. 600.315(e)(1)(ii) of the
guidelines for national standard 2 already contains this requirement.
Comment 32. Several commenters stated that the list of factors in
Sec. 600.350(b)(3) is comprehensive and invites the Councils to use
those factors as loopholes to avoid taking action. Commenters
questioned why such a comprehensive list is needed for this standard
and none of the others.
Response. NMFS disagrees. The lack of complete and perfect
information is
[[Page 24227]]
not an excuse for not taking action. Uncertainty concerning the
desirable and undesirable effects of minimizing bycatch and bycatch
mortality should be dealt with similarly. (See also the response to
comment 35 under national standard 9).
Comment 33. One commenter stated that there are no criteria or
methods for establishing criteria for determining how much bycatch is
too much.
Response. NMFS disagrees. Section 600.350(d)(3) provides a list of
criteria for evaluating the impacts of bycatch. Each Council must
determine how much bycatch is too much by balancing the various factors
that will maximize the net benefits to the Nation (see also the
response to comment 24 under national standard 9). Language that
includes the maximization of net benefits to the Nation has been added
to Sec. 600.350(d)(3). The legislative history of the SFA includes the
following floor statement by Congressman Young: ``'Practicable'
requires an analysis of the cost of imposing a management action; the
Congress does not intend to ...impose costs on fishermen and processors
that cannot be reasonably met.''
Comment 34. Several commenters stated that Councils should
prioritize their actions to address those fisheries that have not only
the greatest bycatch rate, but also the greatest amount of bycatch.
Response. NMFS agrees that the Councils will need to prioritize
their actions to address those fisheries where actions to reduce
bycatch can have the greatest impact. Each Council will have to
determine the basis for setting its priorities.
Comment 35. One commenter stated that the final rule must clearly
reflect that Councils are not constrained from acting when faced with
uncertainty surrounding one or several items included in
Sec. 600.350(d)(3).
Response. NMFS agrees. The Councils must take action to ensure the
sustainability of the Nation's marine fishery resources. National
standard 2 specifically requires that conservation and management
measures be based on the best scientific information available. Where
there is uncertainty surrounding any of the items in
Sec. 600.350(d)(3), Councils should adhere to the precautionary
approach stated in the Food and Agriculture Organization of the United
Nations (FAO) Code of Conduct for Responsible Fisheries (Article 6.5).
The Code specifically states, ``The absence of adequate scientific
information should not be used as a reason for postponing or failing to
take measures to conserve target species, associated or dependent
species and non-target species and their environment.'' Language to
that effect has been added to Sec. 600.350(d)(3).
Comment 36. Several commenters noted that requirements to implement
monitoring programs in FMPs may prevent approval. Such requirements
could be an administrative burden for the Councils and be very costly
to implement.
Response. NMFS disagrees. Section 303(a)(11) of the Magnuson-
Stevens Act specifically requires the Councils to establish, for each
fishery, a ``standardized reporting methodology to assess the amount
and type of bycatch occurring in the fishery.'' The statute makes no
allowance for the financial or administrative burden of establishing
such reporting programs. It is clear that, in order to be able to
assess the amount and type of bycatch occurring in various fisheries,
monitoring programs must be established.
Comment 37. One commenter stated that data collection from all
fishermen must be made a high priority.
Response. NMFS agrees and notes that the uncertainty surrounding
estimates of the types and amounts of bycatch cannot be reduced without
the cooperation and involvement of all components of the fisheries.
National Standard 10
Nine commenters commented specifically on national standard 10. All
were positive and most substantive comments were directed at making the
standard more restrictive. Several commenters gave unqualified support
to the standard. One commenter urged that NMFS work aggressively with
the Councils ``to ensure that safety is constantly considered in
fishery management.''
Comment 1: One commenter noted that no criteria were provided for
the phrase ``to the extent practicable'' in national standard 10, as
were provided for national standard 9.
Response: NMFS disagrees. Section 600.355(b)(2) directly addresses
these concerns.
Comment 2: One commenter noted ``while it is stated clearly in the
opening paragraph of the regulatory text (Sec. 600.355(b)(1)) that this
standard [is] not meant to 'give preference to one method of managing a
fishery over another,' the suggested mitigation management measures are
replete with inappropriate implicit endorsement of ITQs (individual
transferrable quotas) that directly undermine that provision.'' These
references include ``limiting the number of participants in the
fishery,'' ``spreading effort over time and area,'' and ``implementing
management measures that reduce the race for fish.''
Response: The mitigation measures do not necessarily endorse ITQs.
While ITQs may be one way to solve some problems with safety of life at
sea and reduce the ``race for fish,'' they are not the only way.
Vessel/license limitation systems have been and are being adopted
without ITQs, such as in the Alaska crab and groundfish fisheries. In
New England, the use of ``days at sea'' has spread effort over time and
area without creating a ``race for fish.'' The term ``race for fish''
was used in the discussion of the bill that became the SFA, to describe
the intensive fisheries that have developed at the expense of safety.
As a primary reason for the establishment of this national standard,
NMFS believes the term captures the intent of Congress and the
legislation.
Comment 3: One commenter recommended that the national standard 10
guidelines require that Councils establish mandatory, standardized,
accurate, and complete injury reporting requirements.
Response: NMFS agrees in part. Domestic fishing vessels are already
required to report this information to the U.S. Coast Guard (USCG)
under provisions at 46 CFR parts 4 and 28. This information can be made
available through the USCG, and reports compared against vessels
participating in the fisheries. Guidance on contents of SAFE reports at
Sec. 600.315(e)(1)(ii) has been revised to include consideration of
safety issues.
Comment 4: One commenter recommended that the statement ``This
standard is not meant to give preference to one method of managing a
fishery over another,'' should be deleted or replaced by, ``While this
standard is not meant to give preference to one method of managing a
fishery over another, it should be considered a significant factor in
allocation and other management decisions and the Council should
provide rational justification why the safest method is not being
used.'' Common sense would dictate that the safer management regime be
used.
Response: NMFS disagrees and believes the guidance, as proposed, is
accurate.
Comment 5: One commenter recommended that the term ``safety of
human life at sea'' should be modified to read ``safety of human life
and limb at sea'' to emphasis reduction in injuries as well as loss of
life.
Response: NMFS considers the term ``safety of human life at sea''
to include not only safety of life, but safety of limb and the general
operating environment, as well, to the extent that fishery
[[Page 24228]]
management measures may affect that safety. The discussion of the term
at Sec. 600.355(b)(3) has been revised to reflect this point.
Comment 6: One commenter recommended that this standard require
that an FMP specify qualifications for individuals who are responsible
for maintaining and controlling the stability of a fishing or fish
processing vessel.
Response: Such a requirement is outside the scope of this
rulemaking. Other than requiring employment and income information,
neither NMFS nor the Councils have specified individual qualifications
for fishermen. Individual professional qualifications for the master
and crew come under the authority of the USCG, as specified by the
Commercial Fishing Industry Vessel Safety Act. NMFS does have the
authority to require permits of fishing vessel operators under the
Magnuson-Stevens Act, section 303(b)(1)(B).
Comment 7: One commenter recommended that this standard consider
more than the stability of the vessel and include safety of machinery
and processing equipment, as well. FMPs should require processing
vessels to meet and maintain safety standards developed in consultation
with the Department of Labor's Occupational Safety and Health
Administration (OSHA) as a condition of participation in the fishery.
Response: Onboard safety concerns, to the extent they are caused by
fishery management measures, are addressed by the guidelines at
Sec. 600.355(c)(2). As noted in the comment, the USCG and OSHA have the
primary responsibility for machinery and processing safety on board
fishing vessels. Vessels are already required to comply with those
standards; additional FMP requirements would therefore be redundant.
Comment 8: One commenter stated that Sec. 600.355(c)(3) does not
direct the creation of a mechanism for fisheries to be closed due to
adverse weather conditions.
Response: While a mechanism to close, delay the opening of, or
otherwise halt the fishery during adverse weather can improve safety,
NMFS does not consider such a mechanism mandatory. Rather, it is one
mitigation measure available to the Council, as noted in
Sec. 600.355(e)(1).
Comment 9: One commenter recommended that OSHA, the National
Institute of Occupational Safety and Health, and the National
Transportation Safety Board be consulted for vessel safety, in addition
to the USCG.
Response: NMFS does not believe that requiring consultations with
all these agencies is necessary at this time. These agencies are
outstanding sources of information on specific issues, and consultation
with one or more of them may be appropriate in certain circumstances.
However, routine consultation with these agencies is not necessary and
would become burdensome to the Councils and to the agencies involved.
NMFS encourages the Councils to use these and other groups, including
industry groups, in formulating safer management measures.
Comment 10: One commenter recommended that a risk analysis be
conducted for future amendments that include allocations between gear
types, inshore-offshore processing allocations, seasonal openings, area
openings or closures, and possibly others.
Response: NMFS does not believe that requiring a specific safety
risk analysis for all these actions is necessary at this time. While a
risk analysis may be appropriate in situations where there are a number
of alternatives whose effects on safety are not clear, in others, the
alternatives may be constrained by other national standard or legal
restrictions, or their effects are very clear and a risk analysis is
unnecessary. NMFS prefers to allow each Council to conduct a risk
analysis at its option, based on consultations with the USCG and the
fishing industry.
Classification
OMB has determined this rule to be economically significant under
E.O. 12866 because this rule provides guidance on implementing
statutory changes that may have large economic impacts on specific
sectors of the economy. Each amendment to an existing FMP and all new
FMPs will include detailed analyses of the benefits and costs of the
management programs under consideration to ensure compliance with E.O.
12866.
In addition, OMB has determined this rule to be ``major'' under the
Small Business Regulatory Enforcement and Fairness Act Congressional
Review provision (5 U.S.C. 801 et seq.). Pursuant to authority at 5
U.S.C. 808(1), this major rule conducting a regulatory program for
commercial and recreational activities related to fishing will be
effective June 1, 1998.
The main purpose of these guidelines, in carrying out the 1996
amendments to the Magnuson-Stevens Act, is to reduce overfishing
immediately, rebuild overfished stocks within a set timeframe, and
prevent by catch and reduce mortality of unavoidable bycatch to the
maximum extent possible. The effects of these guidelines can only be
described qualitatively; quantified and monetized estimates of
benefits, costs and other effects cannot be developed until specific
regulatory actions are indentified and proposed. Changes in employment,
regional economic development, and a variety of distributional concerns
are examples of the important effects not otherwise captured in
estimates of social costs and benefits.
Producers will bear costs implementing programs and regulations
developed under these guidelines to restore fisheries stocks. These
costs will take a variety of forms, such as mandatory investments in
new fishing gear to reduce bycatch; restrictions on the level of
fishing effort, which raise average costs; and other measures intended
to reduce the quantity of fish harvested. Consumers also will bear
costs, primarily in the form of lost consumers' surplus resulting from
reduced market supply and concomitant higher prices. These costs will
rise to the extent that consumer tastes continue to evolve toward
greater preference for fish and shellfish over other foods.
Once fisheries stocks have recovered, producers will gain benefits
in the form of reduced costs of production. Consumers also will benefit
to the extent that restored stocks permit increases in the allowable
harvest compatible with sustainable yield. Summed over all fisheries in
the exclusive economic zone over the long term, the potential increase
in net revenues is estimated at $2.9 billion annually. Social benefits
will equal the fraction of this amount remaining after all costs are
deducted.
In the short-run, fisheries employment will likely fall as
producers adapt to rules and restrictions undertaken to restore long-
term sustainability. These job losses will be at least partially offset
by increases in employment elsewhere. Once fisheries stocks have
recovered, however, fisheries employment could increase by up to
300,000 jobs over present employment levels. As in the case of short-
term job losses, these employment gains will be at least partially
offset by reductions in jobs elsewhere. Changes in employment do not
translate directly into benefits or costs, however, and must be
evaluated instead as a separate class of effects resulting from
individual rules and regulations promulgated pursuant to this guidance.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule will not have a
significant economic impact on a substantial
[[Page 24229]]
number of small entities. This rule adds to and updates the national
standards and accompanying explanatory and interpretive language to
implement statutory provisions of the SFA. The SFA's amendments to the
national standards make it necessary for the Councils to examine their
existing FMPs and all future proposed management measures to ensure
that they comply with the national standards; FMPs found out of
compliance will need to be amended. These guidelines are intended to
provide direction and elaboration on compliance with the national
standards and, in themselves, do not have the force of law. Should
Councils propose regulations as a result of the SFA, those actions may
affect small entities and could be subject to the requirement to
prepare a Regulatory Flexibility Analysis at the time they are
proposed. Any future effects on small entities that may ultimately
result from amendments to FMPs to bring them into compliance with the
Magnuson-Stevens Act would be speculative at this time. One comment was
received regarding this determination; the commenter believed that the
impacts of these guidelines would have a significant economic impact on
a substantial number of small entities. However, as explained in the
response to general comment 8 above, NMFS believes that, while
significant impacts could result from future management actions, the
guidelines themselves have no such effect. Furthermore, NMFS has no
basis upon which to assess, at this time, the impacts of regulations
that may result from these revisions to the guidelines, except in the
broadest sense. As a result, a Regulatory Flexibility Analysis for this
rule was not prepared.
List of Subjects in 50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, National Oceanic and Atmospheric
Administration, Penalties, Reporting and recordkeeping requirements,
Statistics.
Rolland A. Schmitten
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 600 is amended
as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
1. The authority citation for part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
2. The part heading is revised to read as set forth above.
3. In Sec. 600.305, paragraph (c)(13) is removed and the second and
third sentences of paragraph (a)(2), the last sentence of paragraph
(a)(3), and paragraphs (c)(1), (c)(3), (c)(11), and (c)(12) are revised
to read as follows:
Sec. 600.305 General.
(a) * * *
(2) * * * The Secretary will determine whether the proposed
management objectives and measures are consistent with the national
standards, other provisions of the Magnuson-Stevens Act, and other
applicable law. The Secretary has an obligation under section 301(b) of
the Magnuson-Stevens Act to inform the Councils of the Secretary's
interpretation of the national standards so that they will have an
understanding of the basis on which FMPs will be reviewed.
(3) * * * FMPs that are in substantial compliance with the
guidelines, the Magnuson-Stevens Act, and other applicable law must be
approved.
* * * * *
(c) * * *
(1) Must is used, instead of ``shall'', to denote an obligation to
act; it is used primarily when referring to requirements of the
Magnuson-Stevens Act, the logical extension thereof, or of other
applicable law.
* * * * *
(3) Should is used to indicate that an action or consideration is
strongly recommended to fulfill the Secretary's interpretation of the
Magnuson-Stevens Act, and is a factor reviewers will look for in
evaluating a SOPP or FMP.
* * * * *
(11) Council includes the Secretary, as applicable, when preparing
FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens
Act.
(12) Stock or stock complex is used as a synonym for ``fishery'' in
the sense of the Magnuson-Stevens Act's first definition of the term;
that is, as ``one or more stocks of fish that can be treated as a unit
for purposes of conservation and management and that are identified on
the basis of geographic, scientific, technical, recreational, or
economic characteristics,'' as distinguished from the Magnuson-Stevens
Act's second definition of fishery as ``any fishing for such stocks.''
4. Section 600.310 is revised to read as follows:
Sec. 600.310 National Standard 1--Optimum Yield.
(a) Standard 1. Conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the OY from each
fishery for the U.S. fishing industry.
(b) General. The determination of OY is a decisional mechanism for
resolving the Magnuson-Stevens Act's multiple purposes and policies,
implementing an FMP's objectives, and balancing the various interests
that comprise the national welfare. OY is based on MSY, or on MSY as it
may be reduced under paragraph (f)(3) of this section. The most
important limitation on the specification of OY is that the choice of
OY and the conservation and management measures proposed to achieve it
must prevent overfishing.
(c) MSY. Each FMP should include an estimate of MSY as explained in
this section.
(1) Definitions. (i) ``MSY'' is the largest long-term average catch
or yield that can be taken from a stock or stock complex under
prevailing ecological and environmental conditions.
(ii) ``MSY control rule'' means a harvest strategy which, if
implemented, would be expected to result in a long-term average catch
approximating MSY.
(iii) ``MSY stock size'' means the long-term average size of the
stock or stock complex, measured in terms of spawning biomass or other
appropriate units, that would be achieved under an MSY control rule in
which the fishing mortality rate is constant.
(2) Options in specifying MSY. (i) Because MSY is a theoretical
concept, its estimation in practice is conditional on the choice of an
MSY control rule. In choosing an MSY control rule, Councils should be
guided by the characteristics of the fishery, the FMP's objectives, and
the best scientific information available. The simplest MSY control
rule is to remove a constant catch in each year that the estimated
stock size exceeds an appropriate lower bound, where this catch is
chosen so as to maximize the resulting long-term average yield. Other
examples include the following: Remove a constant fraction of the
biomass in each year, where this fraction is chosen so as to maximize
the resulting long-term average yield; allow a constant level of
escapement in each year, where this level is chosen so as to maximize
the resulting long-term average yield; vary the fishing mortality rate
as a continuous function of stock size, where the parameters of this
function are constant and chosen so as to maximize the resulting long-
term average yield. In any MSY control rule,
[[Page 24230]]
a given stock size is associated with a given level of fishing
mortality and a given level of potential harvest, where the long-term
average of these potential harvests provides an estimate of MSY.
(ii) Any MSY values used in determining OY will necessarily be
estimates, and these will typically be associated with some level of
uncertainty. Such estimates must be based on the best scientific
information available (see Sec. 600.315) and must incorporate
appropriate consideration of risk (see Sec. 600.335). Beyond these
requirements, however, Councils have a reasonable degree of latitude in
determining which estimates to use and how these estimates are to be
expressed. For example, a point estimate of MSY may be expressed by
itself or together with a confidence interval around that estimate.
(iii) In the case of a mixed-stock fishery, MSY should be specified
on a stock-by-stock basis. However, where MSY cannot be specified for
each stock, then MSY may be specified on the basis of one or more
species as an indicator for the mixed stock as a whole or for the
fishery as a whole.
(iv) Because MSY is a long-term average, it need not be estimated
annually, but it must be based on the best scientific information
available, and should be re-estimated as required by changes in
environmental or ecological conditions or new scientific information.
(3) Alternatives to specifying MSY. When data are insufficient to
estimate MSY directly, Councils should adopt other measures of
productive capacity that can serve as reasonable proxies for MSY, to
the extent possible. Examples include various reference points defined
in terms of relative spawning per recruit. For instance, the fishing
mortality rate that reduces the long-term average level of spawning per
recruit to 30-40 percent of the long-term average that would be
expected in the absence of fishing may be a reasonable proxy for the
MSY fishing mortality rate. The long-term average stock size obtained
by fishing year after year at this rate under average recruitment may
be a reasonable proxy for the MSY stock size, and the long-term average
catch so obtained may be a reasonable proxy for MSY. The natural
mortality rate may also be a reasonable proxy for the MSY fishing
mortality rate. If a reliable estimate of pristine stock size (i.e.,
the long-term average stock size that would be expected in the absence
of fishing) is available, a stock size approximately 40 percent of this
value may be a reasonable proxy for the MSY stock size, and the product
of this stock size and the natural mortality rate may be a reasonable
proxy for MSY.
(d) Overfishing--(1) Definitions. (i) ``To overfish'' means to fish
at a rate or level that jeopardizes the capacity of a stock or stock
complex to produce MSY on a continuing basis.
(ii) ``Overfishing'' occurs whenever a stock or stock complex is
subjected to a rate or level of fishing mortality that jeopardizes the
capacity of a stock or stock complex to produce MSY on a continuing
basis.
(iii) In the Magnuson-Stevens Act, the term ``overfished'' is used
in two senses: First, to describe any stock or stock complex that is
subjected to a rate or level of fishing mortality meeting the criterion
in paragraph (d)(1)(i) of this section, and second, to describe any
stock or stock complex whose size is sufficiently small that a change
in management practices is required in order to achieve an appropriate
level and rate of rebuilding. To avoid confusion, this section uses
``overfished'' in the second sense only.
(2) Specification of status determination criteria. Each FMP must
specify, to the extent possible, objective and measurable status
determination criteria for each stock or stock complex covered by that
FMP and provide an analysis of how the status determination criteria
were chosen and how they relate to reproductive potential. Status
determination criteria must be expressed in a way that enables the
Council and the Secretary to monitor the stock or stock complex and
determine annually whether overfishing is occurring and whether the
stock or stock complex is overfished. In all cases, status
determination criteria must specify both of the following:
(i) A maximum fishing mortality threshold or reasonable proxy
thereof. The fishing mortality threshold may be expressed either as a
single number or as a function of spawning biomass or other measure of
productive capacity. The fishing mortality threshold must not exceed
the fishing mortality rate or level associated with the relevant MSY
control rule. Exceeding the fishing mortality threshold for a period of
1 year or more constitutes overfishing.
(ii) A minimum stock size threshold or reasonable proxy thereof.
The stock size threshold should be expressed in terms of spawning
biomass or other measure of productive capacity. To the extent
possible, the stock size threshold should equal whichever of the
following is greater: One-half the MSY stock size, or the minimum stock
size at which rebuilding to the MSY level would be expected to occur
within 10 years if the stock or stock complex were exploited at the
maximum fishing mortality threshold specified under paragraph (d)(2)(i)
of this section. Should the actual size of the stock or stock complex
in a given year fall below this threshold, the stock or stock complex
is considered overfished.
(3) Relationship of status determination criteria to other national
standards--(i) National standard 2. Status determination criteria must
be based on the best scientific information available (see
Sec. 600.315). When data are insufficient to estimate MSY, Councils
should base status determination criteria on reasonable proxies thereof
to the extent possible (also see paragraph (c)(3) of this section). In
cases where scientific data are severely limited, effort should also be
directed to identifying and gathering the needed data.
(ii) National standard 3. The requirement to manage interrelated
stocks of fish as a unit or in close coordination notwithstanding (see
Sec. 600.320), status determination criteria should generally be
specified in terms of the level of stock aggregation for which the best
scientific information is available (also see paragraph (c)(2)(iii) of
this section).
(iii) National standard 6. Councils must build into the status
determination criteria appropriate consideration of risk, taking into
account uncertainties in estimating harvest, stock conditions, life
history parameters, or the effects of environmental factors (see
Sec. 600.335).
(4) Relationship of status determination criteria to environmental
change. Some short-term environmental changes can alter the current
size of a stock or stock complex without affecting the long-term
productive capacity of the stock or stock complex. Other environmental
changes affect both the current size of the stock or stock complex and
the long-term productive capacity of the stock or stock complex.
(i) If environmental changes cause a stock or stock complex to fall
below the minimum stock size threshold without affecting the long-term
productive capacity of the stock or stock complex, fishing mortality
must be constrained sufficiently to allow rebuilding within an
acceptable time frame (also see paragraph (e)(4)(ii) of this section).
Status determination criteria need not be respecified.
(ii) If environmental changes affect the long-term productive
capacity of the stock or stock complex, one or more components of the
status determination criteria must be respecified. Once status
determination criteria have been respecified, fishing mortality may or
may not have to be reduced, depending
[[Page 24231]]
on the status of the stock or stock complex with respect to the new
criteria.
(iii) If manmade environmental changes are partially responsible
for a stock or stock complex being in an overfished condition, in
addition to controlling effort, Councils should recommend restoration
of habitat and other ameliorative programs, to the extent possible (see
also the guidelines issued pursuant to section 305(b) of the Magnuson-
Stevens Act for Council actions concerning essential fish habitat).
(5) Secretarial approval of status determination criteria.
Secretarial approval or disapproval of proposed status determination
criteria will be based on consideration of whether the proposal:
(i) Has sufficient scientific merit.
(ii) Contains the elements described in paragraph (d)(2) of this
section.
(iii) Provides a basis for objective measurement of the status of
the stock or stock complex against the criteria.
(iv) Is operationally feasible.
(6) Exceptions. There are certain limited exceptions to the
requirement to prevent overfishing. Harvesting one species of a mixed-
stock complex at its optimum level may result in the overfishing of
another stock component in the complex. A Council may decide to permit
this type of overfishing only if all of the following conditions are
satisfied:
(i) It is demonstrated by analysis (paragraph (f)(6) of this
section) that such action will result in long-term net benefits to the
Nation.
(ii) It is demonstrated by analysis that mitigating measures have
been considered and that a similar level of long-term net benefits
cannot be achieved by modifying fleet behavior, gear selection/
configuration, or other technical characteristic in a manner such that
no overfishing would occur.
(iii) The resulting rate or level of fishing mortality will not
cause any species or evolutionarily significant unit thereof to require
protection under the ESA.
(e) Ending overfishing and rebuilding overfished stocks-- (1)
Definition. A threshold, either maximum fishing mortality or minimum
stock size, is being ``approached'' whenever it is projected that the
threshold will be breached within 2 years, based on trends in fishing
effort, fishery resource size, and other appropriate factors.
(2) Notification. The Secretary will immediately notify a Council
and request that remedial action be taken whenever the Secretary
determines that:
(i) Overfishing is occurring;
(ii) A stock or stock complex is overfished;
(iii) The rate or level of fishing mortality for a stock or stock
complex is approaching the maximum fishing mortality threshold;
(iv) A stock or stock complex is approaching its minimum stock size
threshold; or
(v) Existing remedial action taken for the purpose of ending
previously identified overfishing or rebuilding a previously identified
overfished stock or stock complex has not resulted in adequate
progress.
(3) Council action. Within 1 year of such time as the Secretary may
identify that overfishing is occurring, that a stock or stock complex
is overfished, or that a threshold is being approached, or such time as
a Council may be notified of the same under paragraph (e)(2) of this
section, the Council must take remedial action by preparing an FMP, FMP
amendment, or proposed regulations. This remedial action must be
designed to accomplish all of the following purposes that apply:
(i) If overfishing is occurring, the purpose of the action is to
end overfishing.
(ii) If the stock or stock complex is overfished, the purpose of
the action is to rebuild the stock or stock complex to the MSY level
within an appropriate time frame.
(iii) If the rate or level of fishing mortality is approaching the
maximum fishing mortality threshold (from below), the purpose of the
action is to prevent this threshold from being reached.
(iv) If the stock or stock complex is approaching the minimum stock
size threshold (from above), the purpose of the action is to prevent
this threshold from being reached.
(4) Constraints on Council action. (i) In cases where overfishing
is occurring, Council action must be sufficient to end overfishing.
(ii) In cases where a stock or stock complex is overfished, Council
action must specify a time period for rebuilding the stock or stock
complex that satisfies the requirements of section 304(e)(4)(A) of the
Magnuson-Stevens Act.
(A) A number of factors enter into the specification of the time
period for rebuilding:
(1) The status and biology of the stock or stock complex;
(2) Interactions between the stock or stock complex and other
components of the marine ecosystem (also referred to as ``other
environmental conditions'');
(3) The needs of fishing communities;
(4) Recommendations by international organizations in which the
United States participates; and
(5) Management measures under an international agreement in which
the United States participates.
(B) These factors enter into the specification of the time period
for rebuilding as follows:
(1) The lower limit of the specified time period for rebuilding is
determined by the status and biology of the stock or stock complex and
its interactions with other components of the marine ecosystem, and is
defined as the amount of time that would be required for rebuilding if
fishing mortality were eliminated entirely.
(2) If the lower limit is less than 10 years, then the specified
time period for rebuilding may be adjusted upward to the extent
warranted by the needs of fishing communities and recommendations by
international organizations in which the United States participates,
except that no such upward adjustment can result in the specified time
period exceeding 10 years, unless management measures under an
international agreement in which the United States participates dictate
otherwise.
(3) If the lower limit is 10 years or greater, then the specified
time period for rebuilding may be adjusted upward to the extent
warranted by the needs of fishing communities and recommendations by
international organizations in which the United States participates,
except that no such upward adjustment can exceed the rebuilding period
calculated in the absence of fishing mortality, plus one mean
generation time or equivalent period based on the species' life-history
characteristics. For example, suppose a stock could be rebuilt within
12 years in the absence of any fishing mortality, and has a mean
generation time of 8 years. The rebuilding period, in this case, could
be as long as 20 years.
(C) A rebuilding program undertaken after May 1, 1998 commences as
soon as the first measures to rebuild the stock or stock complex are
implemented.
(D) In the case of rebuilding plans that were already in place as
of May 1, 1998, such rebuilding plans must be reviewed to determine
whether they are in compliance with all requirements of the Magnuson-
Stevens Act, as amended by the Sustainable Fisheries Act.
(iii) For fisheries managed under an international agreement,
Council action must reflect traditional participation in the fishery,
relative to other nations, by fishermen of the United States.
(5) Interim measures. The Secretary, on his/her own initiative or
in response
[[Page 24232]]
to a Council request, may implement interim measures to reduce
overfishing under section 305(c) of the Magnuson-Stevens Act, until
such measures can be replaced by an FMP, FMP amendment, or regulations
taking remedial action.
(i) These measures may remain in effect for no more than 180 days,
but may be extended for an additional 180 days if the public has had an
opportunity to comment on the measures and, in the case of Council-
recommended measures, the Council is actively preparing an FMP, FMP
amendment, or proposed regulations to address overfishing on a
permanent basis. Such measures, if otherwise in compliance with the
provisions of the Magnuson-Stevens Act, may be implemented even though
they are not sufficient by themselves to stop overfishing of a fishery.
(ii) If interim measures are made effective without prior notice
and opportunity for comment, they should be reserved for exceptional
situations, because they affect fishermen without providing the usual
procedural safeguards. A Council recommendation for interim measures
without notice-and-comment rulemaking will be considered favorably if
the short-term benefits of the measures in reducing overfishing
outweigh the value of advance notice, public comment, and deliberative
consideration of the impacts on participants in the fishery.
(f) OY--(1) Definitions. (i) The term ``optimum,'' with respect to
the yield from a fishery, means the amount of fish that will provide
the greatest overall benefit to the Nation, particularly with respect
to food production and recreational opportunities and taking into
account the protection of marine ecosystems; that is prescribed on the
basis of the MSY from the fishery, as reduced by any relevant economic,
social, or ecological factor; and, in the case of an overfished
fishery, that provides for rebuilding to a level consistent with
producing the MSY in such fishery.
(ii) In national standard 1, use of the phrase ``achieving, on a
continuing basis, the OY from each fishery'' means producing, from each
fishery, a long-term series of catches such that the average catch is
equal to the average OY and such that status determination criteria are
met.
(2) Values in determination. In determining the greatest benefit to
the Nation, these values that should be weighed are food production,
recreational opportunities, and protection afforded to marine
ecosystems. They should receive serious attention when considering the
economic, social, or ecological factors used in reducing MSY to obtain
OY.
(i) The benefits of food production are derived from providing
seafood to consumers, maintaining an economically viable fishery
together with its attendant contributions to the national, regional,
and local economies, and utilizing the capacity of the Nation's fishery
resources to meet nutritional needs.
(ii) The benefits of recreational opportunities reflect the quality
of both the recreational fishing experience and non-consumptive fishery
uses such as ecotourism, fish watching, and recreational diving, and
the contribution of recreational fishing to the national, regional, and
local economies and food supplies.
(iii) The benefits of protection afforded to marine ecosystems are
those resulting from maintaining viable populations (including those of
unexploited species), maintaining evolutionary and ecological processes
(e.g., disturbance regimes, hydrological processes, nutrient cycles),
maintaining the evolutionary potential of species and ecosystems, and
accommodating human use.
(3) Factors relevant to OY. Because fisheries have finite
capacities, any attempt to maximize the measures of benefit described
in paragraph (f)(2) of this section will inevitably encounter practical
constraints. One of these is MSY. Moreover, various factors can
constrain the optimum level of catch to a value less than MSY. The
Magnuson-Stevens Act's definition of OY identifies three categories of
such factors: Social, economic, and ecological. Not every factor will
be relevant in every fishery. For some fisheries, insufficient
information may be available with respect to some factors to provide a
basis for corresponding reductions in MSY.
(i) Social factors. Examples are enjoyment gained from recreational
fishing, avoidance of gear conflicts and resulting disputes,
preservation of a way of life for fishermen and their families, and
dependence of local communities on a fishery. Other factors that may be
considered include the cultural place of subsistence fishing,
obligations under Indian treaties, and worldwide nutritional needs.
(ii) Economic factors. Examples are prudent consideration of the
risk of overharvesting when a stock's size or productive capacity is
uncertain, satisfaction of consumer and recreational needs, and
encouragement of domestic and export markets for U.S.-harvested fish.
Other factors that may be considered include the value of fisheries,
the level of capitalization, the decrease in cost per unit of catch
afforded by an increase in stock size, and the attendant increase in
catch per unit of effort, alternate employment opportunities, and
economies of coastal areas.
(iii) Ecological factors. Examples are stock size and age
composition, the vulnerability of incidental or unregulated stocks in a
mixed-stock fishery, predator-prey or competitive interactions, and
dependence of marine mammals and birds or endangered species on a stock
of fish. Also important are ecological or environmental conditions that
stress marine organisms, such as natural and manmade changes in
wetlands or nursery grounds, and effects of pollutants on habitat and
stocks.
(4) Specification. (i) The amount of fish that constitutes the OY
should be expressed in terms of numbers or weight of fish. However, OY
may be expressed as a formula that converts periodic stock assessments
into target harvest levels; in terms of an annual harvest of fish or
shellfish having a minimum weight, length, or other measurement; or as
an amount of fish taken only in certain areas, in certain seasons, with
particular gear, or by a specified amount of fishing effort.
(ii) Either a range or a single value may be specified for OY.
Specification of a numerical, fixed-value OY does not preclude use of
annual target harvest levels that vary with stock size. Such target
harvest levels may be prescribed on the basis of an OY control rule
similar to the MSY control rule described in paragraph (c)(1)(ii) of
this section, but designed to achieve OY on average, rather than MSY.
The annual harvest level obtained under an OY control rule must always
be less than or equal to the harvest level that would be obtained under
the MSY control rule.
(iii) All fishing mortality must be counted against OY, including
that resulting from bycatch, scientific research, and any other fishing
activities.
(iv) The OY specification should be translatable into an annual
numerical estimate for the purposes of establishing any TALFF and
analyzing impacts of the management regime. There should be a mechanism
in the FMP for periodic reassessment of the OY specification, so that
it is responsive to changing circumstances in the fishery.
(v) The determination of OY requires a specification of MSY, which
may not always be possible or meaningful. However, even where
sufficient scientific data as to the biological characteristics of the
stock do not exist,
[[Page 24233]]
or where the period of exploitation or investigation has not been long
enough for adequate understanding of stock dynamics, or where frequent
large-scale fluctuations in stock size diminish the meaningfulness of
the MSY concept, the OY must still be based on the best scientific
information available. When data are insufficient to estimate MSY
directly, Councils should adopt other measures of productive capacity
that can serve as reasonable proxies for MSY to the extent possible
(also see paragraph (c)(3) of this section).
(vi) In a mixed-stock fishery, specification of a fishery-wide OY
may be accompanied by management measures establishing separate annual
target harvest levels for the individual stocks. In such cases, the sum
of the individual target levels should not exceed OY.
(5) OY and the precautionary approach. In general, Councils should
adopt a precautionary approach to specification of OY. A precautionary
approach is characterized by three features:
(i) Target reference points, such as OY, should be set safely below
limit reference points, such as the catch level associated with the
fishing mortality rate or level defined by the status determination
criteria. Because it is a target reference point, OY does not
constitute an absolute ceiling, but rather a desired result. An FMP
must contain conservation and management measures to achieve OY, and
provisions for information collection that are designed to determine
the degree to which OY is achieved on a continuing basis--that is, to
result in a long-term average catch equal to the long-term average OY,
while meeting the status determination criteria. These measures should
allow for practical and effective implementation and enforcement of the
management regime, so that the harvest is allowed to reach OY, but not
to exceed OY by a substantial amount. The Secretary has an obligation
to implement and enforce the FMP so that OY is achieved. If management
measures prove unenforceable--or too restrictive, or not rigorous
enough to realize OY--they should be modified; an alternative is to
reexamine the adequacy of the OY specification. Exceeding OY does not
necessarily constitute overfishing. However, even if no overfishing
resulted from exceeding OY, continual harvest at a level above OY would
violate national standard 1, because OY was not achieved on a
continuing basis.
(ii) A stock or stock complex that is below the size that would
produce MSY should be harvested at a lower rate or level of fishing
mortality than if the stock or stock complex were above the size that
would produce MSY.
(iii) Criteria used to set target catch levels should be explicitly
risk averse, so that greater uncertainty regarding the status or
productive capacity of a stock or stock complex corresponds to greater
caution in setting target catch levels. Part of the OY may be held as a
reserve to allow for factors such as uncertainties in estimates of
stock size and DAH. If an OY reserve is established, an adequate
mechanism should be included in the FMP to permit timely release of the
reserve to domestic or foreign fishermen, if necessary.
(6) Analysis. An FMP must contain an assessment of how its OY
specification was determined (section 303(a)(3) of the Magnuson-Stevens
Act). It should relate the explanation of overfishing in paragraph (d)
of this section to conditions in the particular fishery and explain how
its choice of OY and conservation and management measures will prevent
overfishing in that fishery. A Council must identify those economic,
social, and ecological factors relevant to management of a particular
fishery, then evaluate them to determine the amount, if any, by which
MSY exceeds OY. The choice of a particular OY must be carefully defined
and documented to show that the OY selected will produce the greatest
benefit to the Nation. If overfishing is permitted under paragraph
(d)(6) of this section, the assessment must contain a justification in
terms of overall benefits, including a comparison of benefits under
alternative management measures, and an analysis of the risk of any
species or ecologically significant unit thereof reaching a threatened
or endangered status, as well as the risk of any stock or stock complex
falling below its minimum stock size threshold.
(7) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens
Act provides that fishing by foreign nations is limited to that portion
of the OY that will not be harvested by vessels of the United States.
(i) DAH. Councils must consider the capacity of, and the extent to
which, U.S. vessels will harvest the OY on an annual basis. Estimating
the amount that U.S. fishing vessels will actually harvest is required
to determine the surplus.
(ii) DAP. Each FMP must assess the capacity of U.S. processors. It
must also assess the amount of DAP, which is the sum of two estimates:
The estimated amount of U.S. harvest that domestic processors will
process, which may be based on historical performance or on surveys of
the expressed intention of manufacturers to process, supported by
evidence of contracts, plant expansion, or other relevant information;
and the estimated amount of fish that will be harvested by domestic
vessels, but not processed (e.g., marketed as fresh whole fish, used
for private consumption, or used for bait).
(iii) JVP. When DAH exceeds DAP, the surplus is available for JVP.
JVP is derived from DAH.
5. In Sec. 600.315, paragraphs (e)(3) and (e)(4) are redesignated
as paragraphs (e)(4) and (e)(5), respectively; new paragraph (e)(3) is
added; and paragraphs (c)(2), (c)(3), (e)(1) introductory text,
(e)(1)(ii), and newly redesignated (e)(4) are revised to read as
follows:
Sec. 600.315 National Standard 2--Scientific Information.
* * * * *
(c) * * *
(2) An FMP should identify scientific information needed from other
sources to improve understanding and management of the resource, marine
ecosystem, and the fishery (including fishing communities).
(3) The information submitted by various data suppliers should be
comparable and compatible, to the maximum extent possible.
* * * * *
(e) * * *
(1) The SAFE report is a document or set of documents that provides
Councils with a summary of information concerning the most recent
biological condition of stocks and the marine ecosystems in the FMU and
the social and economic condition of the recreational and commercial
fishing interests, fishing communities, and the fish processing
industries. It summarizes, on a periodic basis, the best available
scientific information concerning the past, present, and possible
future condition of the stocks, marine ecosystems, and fisheries being
managed under Federal regulation.
* * * * *
(ii) The SAFE report provides information to the Councils for
determining annual harvest levels from each stock, documenting
significant trends or changes in the resource, marine ecosystems, and
fishery over time, and assessing the relative success of existing state
and Federal fishery management programs. Information on bycatch and
safety for each fishery should also be summarized. In addition, the
SAFE report may be used to update or expand previous environmental and
regulatory impact documents, and ecosystem and habitat descriptions.
* * * * *
[[Page 24234]]
(3) Each SAFE report should contain a description of the maximum
fishing mortality threshold and the minimum stock size threshold for
each stock or stock complex, along with information by which the
Council may determine:
(i) Whether overfishing is occurring with respect to any stock or
stock complex, whether any stock or stock complex is overfished,
whether the rate or level of fishing mortality applied to any stock or
stock complex is approaching the maximum fishing mortality threshold,
and whether the size of any stock or stock complex is approaching the
minimum stock size threshold.
(ii) Any management measures necessary to provide for rebuilding an
overfished stock or stock complex (if any) to a level consistent with
producing the MSY in such fishery.
(4) Each SAFE report may contain additional economic, social,
community, essential fish habitat, and ecological information pertinent
to the success of management or the achievement of objectives of each
FMP.
* * * * *
6. In Sec. 600.320, the last sentence of paragraph (c) is revised
to read as follows:
Sec. 600.320 National Standard 3--Management Units.
* * * * *
(c) * * * The Secretary designates which Council(s) will prepare
the FMP, under section 304(f) of the Magnuson-Stevens Act.
* * * * *
7. In Sec. 600.325, paragraph (c)(3)(ii) is revised to read as
follows:
Sec. 600.325 National Standard 4--Allocations.
* * * * *
(c) * * *
(3) * * *
(ii) Promotion of conservation. Numerous methods of allocating
fishing privileges are considered ``conservation and management''
measures under section 303 of the Magnuson-Stevens Act. An allocation
scheme may promote conservation by encouraging a rational, more easily
managed use of the resource. Or, it may promote conservation (in the
sense of wise use) by optimizing the yield in terms of size, value,
market mix, price, or economic or social benefit of the product. To the
extent that rebuilding plans or other conservation and management
measures that reduce the overall harvest in a fishery are necessary,
any harvest restrictions or recovery benefits must be allocated fairly
and equitably among the commercial, recreational, and charter fishing
sectors of the fishery.
* * * * *
8. In Sec. 600.330, paragraphs (a) and (b)(1), the first sentence
of paragraph (c) introductory text, the last sentence of paragraph
(c)(1), and paragraph (c)(2) are revised to read as follows:
Sec. 600.330 National Standard 5--Efficiency.
(a) Standard 5. Conservation and management measures shall, where
practicable, consider efficiency in the utilization of fishery
resources; except that no such measure shall have economic allocation
as its sole purpose.
(b) * * *
(1) General. The term ``utilization'' encompasses harvesting,
processing, marketing, and non-consumptive uses of the resource, since
management decisions affect all sectors of the industry. In considering
efficient utilization of fishery resources, this standard highlights
one way that a fishery can contribute to the Nation's benefit with the
least cost to society: Given a set of objectives for the fishery, an
FMP should contain management measures that result in as efficient a
fishery as is practicable or desirable.
* * * * *
(c) Limited access. A ``system for limiting access,'' which is an
optional measure under section 303(b) of the Magnuson-Stevens Act, is a
type of allocation of fishing privileges that may be considered to
contribute to economic efficiency or conservation. * * *
(1) * * * Two forms (i.e., Federal fees for licenses or permits in
excess of administrative costs, and taxation) are not permitted under
the Magnuson-Stevens Act, except for fees allowed under section
304(d)(2).
(2) Factors to consider. The Magnuson-Stevens Act ties the use of
limited access to the achievement of OY. An FMP that proposes a limited
access system must consider the factors listed in section 303(b)(6) of
the Magnuson-Stevens Act and in Sec. 600.325(c)(3). In addition, it
should consider the criteria for qualifying for a permit, the nature of
the interest created, whether to make the permit transferable, and the
Magnuson-Stevens Act's limitations on returning economic rent to the
public under section 304(d). The FMP should also discuss the costs of
achieving an appropriate distribution of fishing privileges.
* * * * *
9. In Sec. 600.340, paragraph (b)(1) is amended by revising the
second sentence to read as follows:
Sec. 600.340 National Standard 7--Costs and Benefits.
* * * * *
(b) * * *
(1) * * * The Magnuson-Stevens Act requires Councils to prepare
FMPs only for overfished fisheries and for other fisheries where
regulation would serve some useful purpose and where the present or
future benefits of regulation would justify the costs. * * *
* * * * *
10. Sections 600.345, 600.350, and 600.355 are added to subpart D
to read as follows:
Sec. 600.345 National Standard 8--Communities.
(a) Standard 8. Conservation and management measures shall,
consistent with the conservation requirements of the Magnuson-Stevens
Act (including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery
resources to fishing communities in order to:
(1) Provide for the sustained participation of such communities;
and
(2) To the extent practicable, minimize adverse economic impacts on
such communities.
(b) General. (1) This standard requires that an FMP take into
account the importance of fishery resources to fishing communities.
This consideration, however, is within the context of the conservation
requirements of the Magnuson-Stevens Act. Deliberations regarding the
importance of fishery resources to affected fishing communities,
therefore, must not compromise the achievement of conservation
requirements and goals of the FMP. Where the preferred alternative
negatively affects the sustained participation of fishing communities,
the FMP should discuss the rationale for selecting this alternative
over another with a lesser impact on fishing communities. All other
things being equal, where two alternatives achieve similar conservation
goals, the alternative that provides the greater potential for
sustained participation of such communities and minimizes the adverse
economic impacts on such communities would be the preferred
alternative.
(2) This standard does not constitute a basis for allocating
resources to a specific fishing community nor for providing
preferential treatment based on residence in a fishing community.
(3) The term ``fishing community'' means a community that is
substantially dependent on or substantially engaged in the harvest or
processing of fishery resources to meet social and economic
[[Page 24235]]
needs, and includes fishing vessel owners, operators, and crew, and
fish processors that are based in such communities. A fishing community
is a social or economic group whose members reside in a specific
location and share a common dependency on commercial, recreational, or
subsistence fishing or on directly related fisheries-dependent services
and industries (for example, boatyards, ice suppliers, tackle shops).
(4) The term ``sustained participation'' means continued access to
the fishery within the constraints of the condition of the resource.
(c) Analysis. (1) FMPs must examine the social and economic
importance of fisheries to communities potentially affected by
management measures. For example, severe reductions of harvests for
conservation purposes may decrease employment opportunities for
fishermen and processing plant workers, thereby adversely affecting
their families and communities. Similarly, a management measure that
results in the allocation of fishery resources among competing sectors
of a fishery may benefit some communities at the expense of others.
(2) An appropriate vehicle for the analyses under this standard is
the fishery impact statement required by section 303(a)(9) of the
Magnuson-Stevens Act. Qualitative and quantitative data may be used,
including information provided by fishermen, dealers, processors, and
fisheries organizations and associations. In cases where data are
severely limited, effort should be directed to identifying and
gathering needed data.
(3) To address the sustained participation of fishing communities
that will be affected by management measures, the analysis should first
identify affected fishing communities and then assess their differing
levels of dependence on and engagement in the fishery being regulated.
The analysis should also specify how that assessment was made. The best
available data on the history, extent, and type of participation of
these fishing communities in the fishery should be incorporated into
the social and economic information presented in the FMP. The analysis
does not have to contain an exhaustive listing of all communities that
might fit the definition; a judgment can be made as to which are
primarily affected. The analysis should discuss each alternative's
likely effect on the sustained participation of these fishing
communities in the fishery.
(4) The analysis should assess the likely positive and negative
social and economic impacts of the alternative management measures,
over both the short and the long term, on fishing communities. Any
particular management measure may economically benefit some communities
while adversely affecting others. Economic impacts should be considered
both for individual communities and for the group of all affected
communities identified in the FMP. Impacts of both consumptive and non-
consumptive uses of fishery resources should be considered.
(5) A discussion of social and economic impacts should identify
those alternatives that would minimize adverse impacts on these fishing
communities within the constraints of conservation and management goals
of the FMP, other national standards, and other applicable law.
Sec. 600.350 National Standard 9--Bycatch.
(a) Standard 9. Conservation and management measures shall, to the
extent practicable:
(1) Minimize bycatch; and
(2) To the extent bycatch cannot be avoided, minimize the mortality
of such bycatch.
(b) General. This national standard requires Councils to consider
the bycatch effects of existing and planned conservation and management
measures. Bycatch can, in two ways, impede efforts to protect marine
ecosystems and achieve sustainable fisheries and the full benefits they
can provide to the Nation. First, bycatch can increase substantially
the uncertainty concerning total fishing-related mortality, which makes
it more difficult to assess the status of stocks, to set the
appropriate OY and define overfishing levels, and to ensure that OYs
are attained and overfishing levels are not exceeded. Second, bycatch
may also preclude other more productive uses of fishery resources.
(c) Definition--Bycatch. The term ``bycatch'' means fish that are
harvested in a fishery, but that are not sold or kept for personal use.
Bycatch includes the discard of whole fish at sea or elsewhere,
including economic discards and regulatory discards, and fishing
mortality due to an encounter with fishing gear that does not result in
capture of fish (i.e., unobserved fishing mortality). Bycatch does not
include any fish that legally are retained in a fishery and kept for
personal, tribal, or cultural use, or that enter commerce through sale,
barter, or trade. Bycatch does not include fish released alive under a
recreational catch-and-release fishery management program. A catch-and-
release fishery management program is one in which the retention of a
particular species is prohibited. In such a program, those fish
released alive would not be considered bycatch. Bycatch also does not
include Atlantic highly migratory species harvested in a commercial
fishery that are not regulatory discards and that are tagged and
released alive under a scientific tag-and-release program established
by the Secretary.
(d) Minimizing bycatch and bycatch mortality. The priority under
this standard is first to avoid catching bycatch species where
practicable. Fish that are bycatch and cannot be avoided must, to the
extent practicable, be returned to the sea alive. Any proposed
conservation and management measure that does not give priority to
avoiding the capture of bycatch species must be supported by
appropriate analyses. In their evaluation, the Councils must consider
the net benefits to the Nation, which include, but are not limited to:
Negative impacts on affected stocks; incomes accruing to participants
in directed fisheries in both the short and long term; incomes accruing
to participants in fisheries that target the bycatch species;
environmental consequences; non-market values of bycatch species, which
include non-consumptive uses of bycatch species and existence values,
as well as recreational values; and impacts on other marine organisms.
To evaluate conservation and management measures relative to this and
other national standards, as well as to evaluate total fishing
mortality, Councils must--
(1) Promote development of a database on bycatch and bycatch
mortality in the fishery to the extent practicable. A review and, where
necessary, improvement of data collection methods, data sources, and
applications of data must be initiated for each fishery to determine
the amount, type, disposition, and other characteristics of bycatch and
bycatch mortality in each fishery for purposes of this standard and of
section 303(a)(11) and (12) of the Magnuson-Stevens Act. Bycatch should
be categorized to focus on management responses necessary to minimize
bycatch and bycatch mortality to the extent practicable. When
appropriate, management measures, such as at-sea monitoring programs,
should be developed to meet these information needs.
(2) For each management measure, assess the effects on the amount
and type of bycatch and bycatch mortality in the fishery. Most
conservation and management measures can affect the amounts of bycatch
or bycatch mortality in a fishery, as well as the extent to
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which further reductions in bycatch are practicable. In analyzing
measures, including the status quo, Councils should assess the impacts
of minimizing bycatch and bycatch mortality, as well as consistency of
the selected measure with other national standards and applicable laws.
The benefits of minimizing bycatch to the extent practicable should be
identified and an assessment of the impact of the selected measure on
bycatch and bycatch mortality provided. Due to limitations on the
information available, fishery managers may not be able to generate
precise estimates of bycatch and bycatch mortality or other effects for
each alternative. In the absence of quantitative estimates of the
impacts of each alternative, Councils may use qualitative measures.
Information on the amount and type of bycatch should be summarized in
the SAFE reports.
(3) Select measures that, to the extent practicable, will minimize
bycatch and bycatch mortality. (i) A determination of whether a
conservation and management measure minimizes bycatch or bycatch
mortality to the extent practicable, consistent with other national
standards and maximization of net benefits to the Nation, should
consider the following factors:
(A) Population effects for the bycatch species.
(B) Ecological effects due to changes in the bycatch of that
species (effects on other species in the ecosystem).
(C) Changes in the bycatch of other species of fish and the
resulting population and ecosystem effects.
(D) Effects on marine mammals and birds.
(E) Changes in fishing, processing, disposal, and marketing costs.
(F) Changes in fishing practices and behavior of fishermen.
(G) Changes in research, administration, and enforcement costs and
management effectiveness.
(H) Changes in the economic, social, or cultural value of fishing
activities and nonconsumptive uses of fishery resources.
(I) Changes in the distribution of benefits and costs.
(J) Social effects.
(ii) The Councils should adhere to the precautionary approach found
in the Food and Agriculture Organization of the United Nations (FAO)
Code of Conduct for Responsible Fisheries (Article 6.5), which is
available from the Director, Publications Division, FAO, Viale delle
Terme di Caracalla, 00100 Rome, Italy, when faced with uncertainty
concerning any of the factors listed in this paragraph (d)(3).
(4) Monitor selected management measures. Effects of implemented
measures should be evaluated routinely. Monitoring systems should be
established prior to fishing under the selected management measures.
Where applicable, plans should be developed and coordinated with
industry and other concerned organizations to identify opportunities
for cooperative data collection, coordination of data management for
cost efficiency, and avoidance of duplicative effort.
(e) Other considerations. Other applicable laws, such as the MMPA,
the ESA, and the Migratory Bird Treaty Act, require that Councils
consider the impact of conservation and management measures on living
marine resources other than fish; i.e., marine mammals and birds.
Sec. 600.355 National Standard 10--Safety of Life at Sea.
(a) Standard 10. Conservation and management measures shall, to the
extent practicable, promote the safety of human life at sea.
(b) General. (1) Fishing is an inherently dangerous occupation
where not all hazardous situations can be foreseen or avoided. The
standard directs Councils to reduce that risk in crafting their
management measures, so long as they can meet the other national
standards and the legal and practical requirements of conservation and
management. This standard is not meant to give preference to one method
of managing a fishery over another.
(2) The qualifying phrase ``to the extent practicable'' recognizes
that regulation necessarily puts constraints on fishing that would not
otherwise exist. These constraints may create pressures on fishermen to
fish under conditions that they would otherwise avoid. This standard
instructs the Councils to identify and avoid those situations, if they
can do so consistent with the legal and practical requirements of
conservation and management of the resource.
(3) For the purposes of this national standard, the safety of the
fishing vessel and the protection from injury of persons aboard the
vessel are considered the same as ``safety of human life at sea. The
safety of a vessel and the people aboard is ultimately the
responsibility of the master of that vessel. Each master makes many
decisions about vessel maintenance and loading and about the
capabilities of the vessel and crew to operate safely in a variety of
weather and sea conditions. This national standard does not replace the
judgment or relieve the responsibility of the vessel master related to
vessel safety. The Councils, the USCG, and NMFS, through the
consultation process of paragraph (d) of this section, will review all
FMPs, amendments, and regulations during their development to ensure
they recognize any impact on the safety of human life at sea and
minimize or mitigate that impact where practicable.
(c) Safety considerations. The following is a non-inclusive list of
safety considerations that should be considered in evaluating
management measures under national standard 10.
(1) Operating environment. Where and when a fishing vessel operates
is partly a function of the general climate and weather patterns of an
area. Typically, larger vessels can fish farther offshore and in more
adverse weather conditions than smaller vessels. An FMP should try to
avoid creating situations that result in vessels going out farther,
fishing longer, or fishing in weather worse than they generally would
have in the absence of management measures. Where these conditions are
unavoidable, management measures should mitigate these effects,
consistent with the overall management goals of the fishery.
(2) Gear and vessel loading requirements. A fishing vessel operates
in a very dynamic environment that can be an extremely dangerous place
to work. Moving heavy gear in a seaway creates a dangerous situation on
a vessel. Carrying extra gear can also significantly reduce the
stability of a fishing vessel, making it prone to capsizing. An FMP
should consider the safety and stability of fishing vessels when
requiring specific gear or requiring the removal of gear from the
water. Management measures should reflect a sensitivity to these issues
and provide methods of mitigation of these situations wherever
possible.
(3) Limited season and area fisheries. Fisheries where time
constraints for harvesting are a significant factor and with no
flexibility for weather, often called ``derby'' fisheries, can create
serious safety problems. To participate fully in such a fishery,
fishermen may fish in bad weather and overload their vessel with catch
and/or gear. Where these conditions exist, FMPs should attempt to
mitigate these effects and avoid them in new management regimes, as
discussed in paragraph (e) of this section.
(d) Consultation. During preparation of any FMP, FMP amendment, or
regulation that might affect safety of human life at sea, the Council
should consult with the USCG and the fishing industry as to the nature
and extent of any adverse impacts. This consultation may be done
through a Council advisory panel, committee, or other review of the
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FMP, FMP amendment, or regulations. Mitigation, to the extent
practicable, and other safety considerations identified in paragraph
(c) of this section should be included in the FMP.
(e) Mitigation measures. There are many ways in which an FMP may
avoid or provide alternative measures to reduce potential impacts on
safety of human life at sea. The following is a list of some factors
that could be considered when management measures are developed:
(1) Setting seasons to avoid hazardous weather.
(2) Providing for seasonal or trip flexibility to account for bad
weather (weather days).
(3) Allowing for pre- and post-season ``soak time'' to deploy and
pick up fixed gear, so as to avoid overloading vessels with fixed gear.
(4) Tailoring gear requirements to provide for smaller or lighter
gear for smaller vessels.
(5) Avoiding management measures that require hazardous at-sea
inspections or enforcement if other comparable enforcement could be
accomplished as effectively.
(6) Limiting the number of participants in the fishery.
(7) Spreading effort over time and area to avoid potential gear
and/or vessel conflicts.
(8) Implementing management measures that reduce the race for fish
and the resulting incentives for fishermen to take additional risks
with respect to vessel safety.
[FR Doc. 98-11471 Filed 4-30-98; 8:45 am]
BILLING CODE 3510-22-F
