[Federal Register Volume 64, Number 44 (Monday, March 8, 1999)]
[Rules and Regulations]
[Pages 10952-10953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5501]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[I.D. 101498C]
RIN 0648-AJ50
Fisheries of the Exclusive Economic Zone Off Alaska; Amendment 56
to the Fishery Management Plan for Groundfish of the Gulf of Alaska and
Amendment 56 to the Fishery Management Plan for the Groundfish Fishery
of the Bering Sea and Aleutian Islands Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Approval of fishery management plan amendments.
-----------------------------------------------------------------------
SUMMARY: NMFS announces the approval of Amendment 56 to the Fishery
Management Plan for Groundfish of the Gulf of Alaska and Amendment 56
to the Fishery Management Plan for the Groundfish Fishery of the Bering
Sea and Aleutian Islands Area. These amendments revise the definition
of overfishing levels (OFL) for groundfish species or species groups in
these fishery management plans (FMPs). This action is necessary to
revise the definition of OFL for compliance with the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act) and is
intended to advance the ability of the North Pacific Fishery Management
Council (Council) to achieve, on a continuing basis, the optimum yield
from fisheries within its geographical area of authority.
DATES: The amendments were approved January 27, 1999.
ADDRESSES: Copies of Amendments 56/56 and the Environmental Assessment
(EA) and related analyses are available from the Council, 605 West 4th
Avenue, Suite 306, Anchorage, AK 99501-2252; telephone 907-271-2809.
FOR FURTHER INFORMATION CONTACT: James Hale, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Section 301(a) of the Magnuson-Stevens Act establishes national
standards for fishery conservation and management. All FMPs prepared
under the authority of the Magnuson-Stevens Act must be consistent with
those standards. National standard 1 requires conservation and
management measures to ``prevent overfishing while achieving, on a
continuing basis, the optimum yield'' from fisheries in Federal waters.
National standard 2 requires that conservation and management measures
be based on the best scientific information available.
Prior to its amendment in 1996, the Magnuson-Stevens Act did not
define overfishing. Advisory national standard guidelines for the
development of FMPs and amendments, pursuant to section 301(b) of the
Magnuson-Stevens Act, required that each FMP specify an objective and
measurable definition of overfishing for each managed stock or stock
complex. The guidelines further required that an overfishing definition
(1) have sufficient scientific merit; (2) be likely to protect the
stock from closely approaching or reaching an overfished status; (3)
provide a basis for objective measurement of the status of the stock
against the definition; and (4) be operationally feasible. The Council
developed such an objective and measurable definition of overfishing
and, in 1991, implemented that definition under Amendments 16 and 21 to
the Alaska groundfish FMPs (56 FR 2700, January 24, 1991).
In 1996, with increased understanding of the reference fishing
mortality rates used to determine Acceptable Biological Catches (ABCs)
and OFLs, the Council recommended, and NMFS approved, the existing
definition of overfishing--a six-tiered system accommodating different
levels of reliable information available to fishery scientists for
determining OFLs. Fishery scientists use the equations from an
appropriate tier to determine when a stock is overfished according to
the reliability of information available. The six-tiered system
accomplishes three basic functions: (1) It compensates for uncertainty
in estimating fishing mortality rates at a level of maximum sustainable
yield (MSY) by establishing fishing mortality rates more conservatively
as biological parameters become more imprecise; (2) it relates fishing
mortality rates directly to biomass for stocks below target abundance
levels, so that fishing mortality rates fall to zero should a stock
become critically depleted; and (3) it maintains a buffer between ABC
and the overfishing level. Further information and background on the
OFL definition contained in Amendments 44/44 may be found in the notice
of availability published at 61 FR 54145 on October 17, 1996.
Revised definition of OFL
On October 11, 1996, the President signed into law the Sustainable
Fisheries Act (Pub.L. 104-297), which made numerous amendments to the
Magnuson-Stevens Act. The amended Magnuson-Stevens Act now defines the
terms ``overfishing'' and ``overfished'' to mean a rate or level of
fishing mortality that jeopardizes the capacity of a fishery to produce
MSY on a continuing basis (section 3(29)), and requires that all FMPs:
Specify objective and measurable criteria for identifying when
the fishery to which the plan applies is overfished (with an
analysis of how the criteria were determined and the relationship of
the criteria to the reproductive potential of stocks of fish in that
fishery) and, in the case of a fishery which the Council or the
Secretary has determined is approaching an overfished condition or
is overfished, contain conservation and management measures to
prevent overfishing and rebuild the fishery (section 303 (a)(10)).
The Magnuson-Stevens Act required all regional fishery management
councils to submit amendments, by October 11, 1998, that would bring
their FMPs into compliance.
In April 1998, the Council and its Advisory Panel and Scientific
and Statistical Committee (SSC) reviewed a draft analysis of
alternatives for revising the existing OFL definitions and, in June
1998, the Council recommended the preferred alternative as Amendments
56/56 to the groundfish FMPs. These amendments revise the definition of
overfishing for consistency with the requirements of the Magnuson-
Stevens Act.
NMFS published a notice of availability for proposed Amendments 56/
56, describing the proposed amendments and inviting public comments, in
the Federal Register at 63 FR 57094 on October 26, 1998. NMFS received
one written comment opposing the proposed definition of overfishing
contained in Amendments 56/56. NMFS responds to the comment in the
following paragraphs.
Comment: Amendments 56/56 should not be approved for two reasons.
First, the overfishing definition does not contain a minimum stock size
threshold (MSST) as called for by NMFS' national standard guidelines.
The guidelines, published at 50 CFR 600.305, are not discretionary and,
hence, the absence of
[[Page 10953]]
an MSST amounts to a violation of the Magnuson-Stevens Act. An MSST is
necessary to provide for rebuilding overfished stocks within the
statutory 10-year time frame established by the Magnuson-Stevens Act.
Based on the preamble to the final rule implementing the guidelines (63
FR 24218; May 1, 1998), a maximum fishing mortality threshold and an
MSST are required because the function of the former is to end
overfishing, but the function of the latter is to provide for
rebuilding. Without an MSST, an overfishing definition would thus only
partially comply with the Magnuson-Stevens Act's requirements regarding
overfished stocks.
Second, the amendments should not be approved because the procedure
for developing the amendments failed to comply with National
Environmental Policy Act (NEPA) requirements that the environmental
assessment (EA) consider a range of alternatives.
Response: NMFS reexamined the proposed amendments in relation to
the national standard guidelines, and the Director, Alaska Science
Center, NMFS, certified that the overfishing definition contained in
Amendments 56/56 comply with the 50 CFR part 600 guidelines.
The guidelines require that overfishing determination criteria
specify ``a minimum stock size threshold or reasonable proxy thereof''
(50 CFR 600.310(d)(2)(ii)). Although the amendments do not specify an
MSST, NMFS has concluded that the overfishing definition contained in
Amendments 56/56 does contain a reasonable proxy for MSST. This proxy
takes the form of the parameter in the overfishing
definition, which determines the relative stock size below which
fishing is prohibited. Although the amendments set at a
default value that does not require fishing to cease until a stock
falls below 5 percent of the level required to produce MSY, the
amendments allow for the Council to set on a case-by-case
basis. Thus, in the event that a stock falls below the level that can
produce MSY, and that an value of 0.05 percent does not
result in an expectation that the stock will rebuild to that level
within 10 years when fished at the minimum fishing mortality threshold,
it would be reasonable to consider such a stock overfished. Upon that
determination, the SSC has the prerogative of adjusting to
achieve rebuilding within 10 years.
Furthermore, NMFS disagrees that the overfishing definition
contained in Amendments 56/56 is insufficient to satisfy the Magnuson-
Stevens Act's requirements for rebuilding overfished stocks. The
comment assumes that, with the present policy and the proposed
amendments, the Council would rely solely on a reduction of fishing
mortality rates to rebuild an overfished stock and that an MSST
criterion would necessarily require additional measures be taken to
rebuild overfished stocks. The MSST criterion, like the proxy for MSST
contained in the amendments, simply provides a mechanism for
designating the point at which a rebuilding plan must be instituted.
The use of a fishing mortality rate criterion for designating when
overfishing occurs--while it automatically institutes one measure for
rebuilding (a reduction of the fishing effort)--does not preclude the
implementation of additional measures as deemed necessary for
rebuilding. The Council's biomass-based policy currently operative in
management of the groundfish fisheries off Alaska provides that
rebuilding automatically begins by a reduction in fishing rates when
stocks decrease in size. Additional actions for rebuilding within the
statutory timeframe of 10 years established by the Magnuson-Stevens Act
may be implemented as necessary by the Council and NMFS.
Also, NMFS disagrees that NEPA requirements for review of
reasonable alternatives were not met in the development of the EA for
this action. The initial draft EA submitted to the SSC and Council in
April 1998 contained two alternatives to the status quo, each of which
contained the MSST criterion. Discussion of these alternatives, labeled
Alternatives 2 and 3 in the April draft of the EA, led the SSC to
request that, due to the complexity of the issue, the third alternative
be dropped in the interest of facilitating ``more deliberative
consideration'' of ``better alternatives'' (SSC Minutes, April 1998, p.
6). The SSC also requested that a revised draft EA present the second
alternative without an MSST. The SSC further stated:
The Council policy of using a biomass-based policy that reduces
fishing mortality as stocks decrease in size was deliberately
selected to provide for automatic rebuilding. In contrast, the NMFS'
guideline does not require action until stocks approach the MSST.
There is substantial literature to indicate that a biomass-based
policy is comparable to or better than a threshold policy. The added
complexity of a threshold policy on top of a biomass-based policy
serves no useful purpose, is harder to implement, and will be harder
for the public to understand. The current stock assessment approach
is sufficient to assure that the harvest levels provide for
sufficient rebuilding within the specified period of 10 years found
in the Magnuson-Stevens Act. (SSC minutes, April 1998, p. 6)
The alternatives contained in the initial draft EA and those
contained in the revised draft EA constitute a reasonable range of
alternatives such as required those under NEPA. Furthermore, the
analysis of those alternatives contained in the draft EAs is sufficient
to determine that an environmental impact statement is not necessary
for these amendments. In order to provide all reasonable alternatives
in one document and to reflect more fully the decision-making process
that led to the proposed action, NMFS combined the April 1998 and June
1998 drafts into a revised and final EA that exhibits all the
alternatives reviewed and discussed by the SSC and Council and
considered by NMFS.
NMFS determined that Amendments 56/56 are consistent with the
Magnuson-Stevens Act and other applicable law and approved Amendments
56/56 on January 27, 1999. Additional information on this action is
contained in the October 26, 1998, Notice of Availability (63 FR
57094).
No regulatory changes are necessary to implement these FMP
amendments.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 1, 1999.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-5501 Filed 3-5-99; 8:45 am]
BILLING CODE 3510-22-F
