[Federal Register Volume 62, Number 248 (Monday, December 29, 1997)]
[Proposed Rules]
[Pages 67608-67610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33643]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 970708168-7168-01; 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: Proposed rule; reopening of public comment period.
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SUMMARY: On August 4, 1997, NMFS published a proposed rule to amend the
national standard guidelines under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). The public
comment period for the proposed guidelines ended September 18, 1997.
Because of remaining issues regarding interpretation of the Magnuson-
Stevens Act's provisions relative to overfishing, NMFS is reopening the
public comment period on national standard 1 for an additional 30 days.
[[Page 67609]]
DATES: The comment period reopens December 29, 1997; comments must be
received on or before January 28, 1998.
ADDRESSES: Comments should be sent to Dr. Gary C. Matlock, Director,
Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver
Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: George H. Darcy, 301-713-2341.
SUPPLEMENTARY INFORMATION:
Background
On August 4, 1997 (62 FR 41907), NMFS published a proposed rule to
amend the guidelines interpreting the 10 national standards found in
section 301(a) of the Magnuson-Stevens Act. Public comment received on
the proposed rule indicated a broad range of views regarding
interpretation of the provisions of the Magnuson-Stevens Act with
respect to prevention of overfishing. Therefore, NMFS is reopening the
comment period on the national standard 1 guidelines for an additional
30 days to obtain additional comment on specific issues regarding
overfishing.
The Sustainable Fisheries Act (SFA), which amended the Magnuson-
Stevens Act in 1996, contained several provisions that affected
national standard 1, which was not itself amended. That standard
requires that conservation and management measures ``shall prevent
overfishing while achieving, on a continuing basis, the optimum yield
from each fishery for the United States fishing industry.'' The SFA
added a definition of ``overfishing'' and ``overfished,'' changed the
definition of ``optimum,'' required that each fishery management plan
specify objective and measurable criteria for identifying when a
fishery is overfished (section 303(a)(10)), and added a section
(304(e)) on identifying and rebuilding overfished fisheries.
Issues
While NMFS received numerous comments on the proposed guidelines,
it believes further comment on the national standard 1 guidelines would
be useful. In particular, NMFS would like commenters to address the
following issues:
1. Usage of ``overfishing'' and ``overfished.'' The SFA adopted the
regulatory definition of ``overfishing'' (at Sec. 600.310(c)(1)), with
two changes. The existing regulatory 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.'' The statutory definition in the SFA deleted the modifier
``long-term'' and substituted ``fishery'' for ``stock or stock
complex.''
NMFS believes that the removal of ``long-term'' in the statutory
language was intended to emphasize the need to address overfishing in
the near term, and to rebuild overfished stocks to levels that would
produce MSY (maximum sustainable yield) within a reasonably short
period of time, rather than in some unspecified time frame. This
interpretation is consistent with the fact that, taken as a whole, the
SFA enacted several significant measures to address overfishing and
rebuilding, including requiring specific time frames for action. Along
with the amendment to the definition of ``optimum,'' under which the
optimum yield cannot be set above the MSY level, the addition of the
definition of ``overfishing'' in the SFA (without reference to ``long-
term'') seems to raise the standard to which conservation and
management measures are held. Because NMFS understood deletion of the
phrase ``long-term'' in the SFA to be significant, the proposed
guidelines tie the meaning of ``overfishing'' to a rate or level of
fishing mortality (i.e., removals of fish from the stock due to
fishing) that jeopardizes the capacity of a stock to produce MSY,
without regard to time frame.
The issue is whether NMFS has correctly interpreted the definition
of overfishing, or whether it should adopt a more elastic guideline
with MSY as only an eventual target.
2. ``Fishery'' versus ``stock.'' As explained above, the statutory
definition of ``overfishing'' uses the term ``fishery'' rather than
``stock or stock complex.'' Both ``fishery'' and ``stock'' are defined
in the Magnuson-Stevens Act; both are used in section 304(e) and
elsewhere somewhat interchangeably.
The proposed guidelines, in large part, speak of ``overfishing''
and ``overfished'' in terms of a stock or stock complex. NMFS
scientists who worked on the guidelines were concerned that a
``fishery,'' in its most expansive sense, is not susceptible to being
judged as overfished or not; only for a stock of fish can measurable,
objective criteria of overfishing be established. The same applies to
judging whether a fishery has been rebuilt; biologically, that can be
determined only on a stock-by-stock basis.
Some commenters believe the requirement to prevent overfishing
should apply only to fisheries in a broader sense, in order to provide
the greatest benefit to the Nation. They believe that fishers may have
to forego substantial economic value from a mixed-stock fishery if it
must be managed to restore the most depleted stock component (species)
in the fishery to the level that would produce MSY. (See issue 4
below.)
The issue is whether NMFS should change its focus in the national
standard 1 guidelines to a ``fishery,'' which may be comprised of
dozens of stocks, or retain the requirements to prevent overfishing of
stocks and rebuild overfished stocks.
3. Rebuilding schedules. The proposed guidelines repeated the
statutory requirement that overfished stocks must be rebuilt in a time
period that is as short as possible, taking into account the status and
biology of the stock, the needs of fishing communities, recommendations
by international organizations, and the interaction of the overfished
stock within the marine ecosystem. However, in no case may the
rebuilding time exceed 10 years, except where the biology of the stock,
other environmental conditions, or management measures under an
international agreement dictate otherwise.
NMFS received comments requesting clarification of the statutory
language. One interpretation is that ``as short as possible'' means 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,
then the factors listed in section 304(e)(4)(A)(i) of the Magnuson-
Stevens Act (i.e., the status and biology of any overfished stocks of
fish, the needs of fishing communities, recommendations by
international organizations in which the United States participates,
and the interaction of the overfished stock of fish within the marine
ecosystem) could be used to lengthen the rebuilding period to as much
as 10 years. If the stock cannot be rebuilt within 10 years in the
absence of fishing mortality on that stock, the rebuilding period based
on the absence of fishing mortality would automatically become the
maximum time for rebuilding, unless management measures under an
international agreement dictate otherwise. Under this interpretation,
the biology of the stock and other environmental conditions are taken
into account in determining the rebuilding period that would be
required, based on the absence of fishing mortality, and those factors
would not be used to further extend the rebuilding period. Therefore,
under this scenario, for a rebuilding period that exceeds 10 years, the
only exception to allow extension of the rebuilding period beyond that
based on an absence of fishing mortality would be for those instances
that are dictated by measures under an
[[Page 67610]]
international agreement to which the United States is a party.
Another possible interpretation for those situations in which the
rebuilding period would exceed 10 years in the absence of fishing is to
treat the 10-year limit as a guide in determining the length of a
rebuilding program. In these cases, the question that immediately
arises is, how long can the rebuilding program be? Must it be
constrained, as in the scenario above, or can it be longer? If so, how
much longer? NMFS believes that it is not desirable to have an
unspecified time period for rebuilding and that such an indeterminate
rebuilding period would be inconsistent with the other provisions of
the Magnuson-Stevens Act. The guidelines could potentially use the
factors in section 304(e)(4)(A)(i) to interpret ``as short as
possible'' to limit the time period beyond 10 years, but NMFS believes
that any rebuilding program that exceeded the period based on no
fishing mortality would need to be justified and constrained by the
life history characteristics of the stock.
The issue is the interpretation of the statutory language and how
much flexibility the statutory language allows. NMFS is specifically
seeking comment on whether or not it is correct in its interpretation
that the duration of rebuilding programs should not be unspecified and,
if so, what factors should be considered in determining that duration.
4. Mixed-stock exception. The proposed guidelines, at
Sec. 600.310(6), relied on the statute's use of the term ``fishery'' to
justify retention of a limited exception to the requirement to prevent
overfishing on all stocks. The exception would allow overfishing of one
species in a mixed-stock complex, but only if certain stringent
conditions are met (i.e., analysis demonstrates that it will result in
long-term net benefits to the Nation and that a similar level of
benefits cannot be achieved through other means; and the resulting rate
of fishing mortality will not cause any species or ecologically
significant unit thereof to require protection under the Endangered
Species Act (ESA) or any stock or stock complex to fall below its
minimum stock size threshold).
This proposed provision has been criticized by those who believe
the Magnuson-Stevens Act allows no exceptions to the requirement to
prevent overfishing, even in mixed-stock fisheries. Others have
criticized the provision as too stringent and believe the Magnuson-
Stevens Act allows overfishing on one or more stocks in mixed-stock
fisheries, even if the result is to maintain, or reduce stocks to, an
overfished status.
The issue is whether to delete or liberalize the limited
exceptions, and whether to add other exceptions. One suggestion is that
the recovery of stocks listed under the ESA should be handled under
that statute, not under the Magnuson-Stevens Act. Another is that
stocks whose rebuilding would not be assisted by cessation of fishing
mortality in the exclusive economic zone should be exempt from the
provisions of section 304(e)(4) of the Magnuson-Stevens Act.
NMFS will respond to comments received on national standard 1
during this 30-day comment period, and to all comments received on the
proposed national standard guidelines during the comment period for the
proposed rule, in the preamble to the final rule.
Dated: December 19, 1997.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 97-33643 Filed 12-22-97; 2:13 pm]
BILLING CODE 3510-22-F
