E8-19874. Magnuson-Stevens Act Provisions; National Standard Guidelines

AGENCY:

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

ACTION:

Proposed rule; withdrawal.

SUMMARY:

NMFS withdraws a proposed rule for revisions to National Standard 1 (NS1) guidelines, which was published on June 22, 2005. Instead of going forward with a final rule directly resulting from the 2005 proposed rule, NMFS published a new proposed rule for the NS1 guidelines in the Federal Register on June 9, 2008, to address new provisions enacted in 2007 in the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA). Because of new requirements for annual catch limits (ACLs) and accountability measures (AMs), among other things, NMFS decided that it was better to proceed with a new proposed rule rather than try to revise a 3-year old action that preceded the MSRA. The new proposed rule provides guidance on ACLs and AMs and other requirements related to overfishing and rebuilding overfished stocks in the National Standard 1 (NS1) guidelines.

DATES:

This proposed rule is withdrawn on August 27, 2008.

FOR FURTHER INFORMATION CONTACT:

Mark R. Millikin, Senior Fishery Management Specialist, 301-713-2341, or via e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Section 301(a) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) states that any fishery management plan (FMP) prepared and any regulation promulgated to implement such a plan shall be consistent with the ten national standards described in that section. Section 301(b) states that the Secretary of Commerce should establish advisory guidelines (which shall not have the force and effect of law) based on the national standards to assist in development of FMPs.

The guidelines for national standards of the Magnuson-Stevens Act were last revised through a final rule published in the Federal Register on May 1, 1998 (63 FR 24212), which brought them into conformance with the Sustainable Fisheries Act of 1996. The May 1998 final rule revised the guidelines for National Standards 1 (optimum yield), 2 (scientific information), 4 (allocations), 5 (efficiency), and 7 (costs and benefits) and added new guidelines for National Standards 8 (communities), 9 (bycatch), and 10 (safety of life at sea).

National Standard 1 (NS1) states “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.” NMFS considered revising the NS1 guidelines when it published an advance notice of proposed rulemaking in 2003 (68 FR 7492, February 14, 2003), and a proposed rule in 2005 (70 FR 36240, June 22, 2005). NMFS received over 250,000 comments. NMFS reviewed all of the comments, and the majority consisted of one of ten different form letters, expressing concern that: (1) Overfishing is occurring for many stocks, (2) many fish stocks are overfished, (3) oceans and fish stocks are in trouble, and (4) at the rate fish stocks are being depleted, there could be severe impacts on future generations of people who enjoy eating fish. Almost all commenters stated that overfishing should be ended immediately. NMFS decided not to publish a final rule directly related to the 2005 proposed rule when it became clear that Congress was preparing an amendment to the Magnuson-Stevens Act that seemed likely to revise provisions related to overfishing and rebuilding overfished stocks.

On January 12, 2007, President Bush signed into law the MSRA. MSRA revised the Magnuson-Stevens Act by adding section 303(a)(15), which requires that any FMP that is prepared by a regional fishery management council or the Secretary shall: “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.” Because of this new requirement to use ACLs and AMs to end/prevent overfishing, NMFS published a proposed rule (73 FR 32526, June 9, 2008) emphasizing new recommendations and requirements related to ACLs and AMs, as well as other issues related to NS1 (especially related to rebuilding overfished fisheries and the concepts of maximum sustainable yield (MSY) and optimum yield (OY)). The 2008 proposed rule also contains guidance about four issues contained in the 2005 proposed rule. The issues covered in the 2005 proposed rule, that are reconsidered in the 2008 proposed rule include: (1) Guidance on how to determine the target time to rebuild a stock; (2) action to take at the end of a rebuilding plan if a stock is no longer overfished, but not rebuilt yet; (3) the definition of several components of MSY; and (4) exceptions to the requirement to prevent overfishing. The four issues listed above contain different wording in the 2008 proposed rule. The remaining issues in the 2005 proposed rule are not covered in the 2008 proposed rule. NMFS' priority is to develop guidance on ACLs and AMs and make other related changes in the NS1 guidelines as soon as possible, given the MSRA statutory requirements to use ACLs and AMs to end overfishing in 2010, and prevent overfishing beginning in 2011. Thus, NMFS' new proposed revisions to the NS1 guidelines published in the Federal Register on June 9, 2008 (73 FR 32526) focus on changes needed to address ACLs and AMs and other new MSRA requirements, and NMFS is withdrawing the 2005 proposed rule.

The proposed revisions contained in the 2005 proposed rule that are not addressed in the 2008 proposed rule are not critical to accomplishing the new MSRA requirements related to ending/preventing overfishing and rebuilding overfished stocks, and include:

• Renaming “minimum stock size threshold” as “minimum biomass limit (B_lim)”;
• Renaming “maximum fishing mortality threshold (MFMT)” as “maximum fishing mortality limit”;
• Renaming “overfished” as “depleted”;
• Specifying that FMPs may be revised so that species/stocks may be classified as “core stocks” or stocks falling within a “stock assemblage”;
• Specifying that B_lim should equal one-half of the biomass that produces MSY (B_msy) as a default value and clarifying when exceptions greater than or less than the 1/2 B_msy value are appropriate for B_lim;
• Revising the maximum rebuilding time horizon formula to remove the discontinuity that results from the formula in the current guidelines;
• Establishing a default value for the target time for rebuilding that equals a time value halfway between minimum time to rebuild (T_min) and maximum time to rebuild (Tmax);
• Using MFMT to determine when a stock is rebuilt if the stock's B_msy and T_min are not known;
• Establishing guidance for how to revise rebuilding plans when a rebuilding plan has not shown adequate progress as described under section 304(e)(7) of the Magnuson-Stevens Act; and
• Revising the current requirement to develop “target” (OY) control rules in addition to limit (MSY) control rules from “may” to “must.”

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

Dated: August 21, 2008.

Samuel D. Rauch III,

Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.