Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules 41907

Missouri, and Nebraska. These negative

declarations certify that MWCs subject

to the requirements of section 111(d)

and section 129 of the Clean Air Act do

not exist in these states. In the final

rules section of the Federal Register, the

EPA is approving the states’ negative

declarations as a direct final rule

without prior proposal because the

Agency views this action as

noncontroversial, and anticipates no

adverse comments. A detailed rationale

for the approval is set forth in the direct

final rule. If no adverse comments are

received in response to this proposed

rule, no further activity is contemplated

in relation to this rule. If the EPA

receives adverse comments, the direct

final rule will be withdrawn and all

public comments received will be

addressed in a subsequent final rule

based on this proposed rule. The EPA

will not institute a second comment

period on this document. Any parties

interested in commenting on this

document should do so at this time.

DATES: Comments on this proposed rule

must be received in writing by

September 3, 1997.

ADDRESSES: Comments may be mailed to

Aaron J. Worstell, Environmental

Protection Agency, Air Planning and

Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT:

Aaron J. Worstell at (913) 551–7787.

SUPPLEMENTARY INFORMATION: See the

information provided in the direct final

rule which is located in the rules

section of the Federal Register.

Dated: July 11, 1997.

Dennis Grams,

Regional Administrator.

[FR Doc. 97–20476 Filed 8–1–97; 8:45 am]

BILLING CODE 6560–50–P

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.

SUMMARY: NMFS proposes revisions to

the 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 proposed

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 MagnusonStevens Act, as amended.

DATES: Comments must be received by

September 18, 1997.

ADDRESSES: Comments should be sent to

Dr. Gary C. Matlock, F/SF, NMFS, 1315

East-West Highway, Silver Spring, MD

20910.

FOR FURTHER INFORMATION CONTACT:

George H. Darcy, 301–713–2341.

SUPPLEMENTARY INFORMATION: On

October 11, 1996, the President signed

into law the SFA (Public Law 104–297),

which made numerous amendments to

the Magnuson-Stevens Act (16 U.S.C.

1801 et seq.). This proposed rule amend

50 CFR part 600, subpart D, to update

the national standard guidelines and to

implement some of the MagnusonStevens Act amendments.

Background

Section 301(a) of the MagnusonStevens 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, based on

the national standards, to assist in the

development of FMPs. 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). This proposed

rule would add those standards and

associated guidelines to subpart D of 50

CFR part 600. Other provisions of the

SFA necessitate significant revisions to

the guidelines for national standard 1

(optimum yield), as proposed in this

rule. Minor revisions to national

standards 2 (scientific information), 4

(allocations), and 5 (efficiency) are also

proposed to conform those standards

and their guidelines to the MagnusonStevens Act, as amended. Additional

technical changes would be made to

§ 600.305 (general) and to guidelines for

national standards 3 (management

units)(§ 600.320) and 7 (costs and

benefits)(§ 600.340) to update

terminology.

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 decisionmaking,

with responsible conservation and

management of valued national

resources as the goal. The proposed

revisions and additions are described

below.

General

The new and revised national

standards apply to all FMPs and

implementing regulations, existing and

future. However, as Congress recognized

by allowing the Councils 2 years from

enactment (i.e., until October 11, 1998)

to submit FMP amendments to comply

with the related new requirements in

section 303(a), it will take considerable

time and effort to bring all FMPs into

compliance with the Magnuson-Stevens

Act. For example, national standard 9

requires that management measures

minimize bycatch, but section

303(a)(11), which states exactly the

same requirement, need not be fully

implemented in all FMPs until October

1998; NMFS will therefore not expect

full compliance with standard 9 until

that date. Once issued in final, NMFS

will use these guidelines to review all

new FMPs and amendments to

determine whether they comply with

the new and revised national standards.

The Councils should review existing

FMPs for compliance with the new and

revised national standards and submit

necessary amendments by October 11,

1998.

The main purpose of the guidelines is

to aid the Councils in fulfilling the

requirements of the Magnuson-Stevens

Act. In the context of preparing an FMP

or FMP amendment, the guidelines

typically address only the Councils’
41908 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules

responsibilities, even though the

Secretary has similar responsibilities in

developing Secretarial FMPs or

amendments to Secretarial FMPs

(sections 304(c) and 304(g) of the

Magnuson-Stevens Act). A new

definition for ‘‘Council’’ would be

added to § 600.305 to include the

Secretary, as applicable, when preparing

FMPs or amendments under section

304(c) and (g) of the Magnuson-Stevens

Act, for efficiency of language and

consistency throughout the national

standard guidelines.

The proposed guidelines seek as

much precision as possible in the use of

the words ‘‘should’’ and ‘‘must.’’

‘‘Must’’ is used to denote an obligation

to act and is used primarily when

referring to requirements of the

Magnuson-Stevens Act, the logical

extension thereof, or other applicable

law. ‘‘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 that reviewers will

look for in evaluating an FMP.

Definitions of ‘‘must’’ and ‘‘should’’ in

§ 600.305 would be revised to reflect

current terminology. A definition for

‘‘stock or stock complex’’ would be

added to § 600.305 to clarify use of that

term and the term ‘‘fishery,’’ as used

throughout the national standard

guidelines.

National Standard 1

National standard 1 guidelines were

last revised in July 1989; that revision

focused on establishing a conservation

standard, with the requirement that

specific, objective, and measurable

definitions of overfishing be established

for each fishery managed under the

Magnuson-Stevens Act (then called the

Magnuson Act). By 1993, more than 100

such definitions had been approved by

NMFS. At that time, NMFS convened a

panel of scientists from inside and

outside the agency to review the

approved definitions, investigate their

strengths and shortcomings, and

standardize, as much as possible, the

criteria and basis for future evaluations

of overfishing definitions. The goal of

the review was to develop a scientific

consensus as to the appropriateness of

the definitions and the criteria used in

their evaluation. The resulting analysis

and report (Rosenberg et al., 1994)

provided a set of scientific principles for

defining overfishing. However, these

principles were not incorporated into

the national standard guidelines. The

SFA introduced or revised definitions

for a number of terms and introduced

several new requirements for contents of

FMPs. As a consequence of the 1994

report and the statutory amendments,

revisions to the national standard 1

guidelines are proposed in this rule, as

described below.

Overview of Issues

Revisions to the guidelines for

national standard 1 center on the

Magnuson-Stevens Act’s definitions of

‘‘overfishing,’’ ‘‘overfished,’’ and

‘‘optimum yield (OY);’’ the requirement

for the establishment of objective and

measurable criteria for determining the

status of a stock or stock complex; and

the requirement for remedial action in

the event that overfishing is occurring or

that a stock or stock complex is

overfished.

The Magnuson-Stevens Act, in section

3(29), defines both ‘‘overfishing’’ and

‘‘overfished’’ as a rate or level of fishing

mortality that jeopardizes a fishery’s

capacity to produce maximum

sustainable yield (MSY) on a continuing

basis. Neither term was defined

statutorily, prior to passage of the SFA.

The existing national standard

guidelines define overfishing somewhat

differently, by qualifying ‘‘capacity’’

with the phrase ‘‘long-term,’’ and do not

include a definition of ‘‘overfished.’’

The Magnuson-Stevens Act, in section

3(28), defines OY as the amount of fish

that: (1) 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; (2) is prescribed on the

basis of the MSY from the fishery, as

reduced by any relevant economic,

social, or ecological factors; and (3) in

the case of an overfished fishery,

provides for rebuilding to a level

consistent with producing the MSY in

such fishery. The main changes relative

to the pre-SFA definition include the

requirements that OY take into account

protection of marine ecosystems, that

OY be no greater than MSY, and that OY

for an overfished fishery allow

rebuilding to the MSY level.

The Magnuson-Stevens Act, in section

303(a)(10), requires each FMP to specify

objective and measurable criteria for

identifying when the fishery to which

the FMP applies is overfished (also

referred to as ‘‘criteria for overfishing’’),

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. The

Magnuson-Stevens Act also requires, in

section 304(e), the Secretary to report

annually to Congress and the Councils

on the status of fisheries within each

Council’s geographical area of authority

and identify those fisheries that are

overfished or are approaching a

condition of being overfished. For each

fishery managed under an FMP or

international agreement, the status is to

be determined using the criteria for

overfishing specified in that FMP or

agreement. A fishery is to be classified

as approaching a condition of being

overfished if, based on trends in fishing

effort, fishery resource size, and other

appropriate factors, the Secretary

estimates that it will become overfished

within 2 years.

If the Secretary determines at any

time that a fishery is overfished or

approaching an overfished condition or

that existing remedial action taken for

the purpose of ending any previously

identified overfishing has not resulted

in adequate progress, the Secretary must

notify the Council and request that

remedial action be taken. Section

304(e)(3) of the Magnuson-Stevens Act

requires that the Council then, within 1

year of notification, prepare an FMP,

FMP amendment, or proposed

regulations for the purposes of ending

(or preventing) overfishing and

rebuilding (or sustaining) affected stocks

of fish.

Overview of Approach

In developing the proposed revised

guidelines, policy guidance was taken

from the Magnuson-Stevens Act and

other applicable law. Because the

guidelines deal with technical subject

matter, guidance was also taken from

the scientific literature. In particular,

the report by Rosenberg et al. (1994) was

used to the extent that it is consistent

with the Magnuson-Stevens Act and

other applicable law.

Overview of Policy and Rationale

Sustainability

Sustainable fisheries is a key theme

within the Magnuson-Stevens Act. The

idea of sustainability is inherent in

MSY, a quantity that is central to the

Magnuson-Stevens Act’s definitions of

both overfishing and OY. Closely related

to the idea of sustainability is the phrase

‘‘on a continuing basis,’’ which is used

both in the Magnuson-Stevens Act’s

definition of overfishing and in national

standard 1. The appropriate

interpretation of sustainability or the

phrase ‘‘on a continuing basis’’ is the

one generally accepted in the fishery

science literature, which relates to an

average stock level and/or average

potential yield from a stock over a long

period of time.

It is important to distinguish between

the theoretical concept of MSY as an

unconditional maximum independent

of management practice, and actual

estimates of MSY, which are necessarily
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules 41909

conditional on some type of (perhaps

hypothetical) management practice.

Specifically, the proposed guidelines, in

§ 600.310(c), describe the role of

‘‘control rules’’ in estimating MSY,

where an MSY control rule is any

harvest strategy that, if implemented,

would be expected to result in a longterm average catch close to MSY. A

Council could choose an MSY control

rule in which fishing mortality is held

constant over time at an appropriate

rate, one in which escapement is held

constant over time at an appropriate

level, or some other control rule, so long

as that control rule is consistent with

the Magnuson-Stevens Act.

Although the Magnuson-Stevens Act’s

definition of overfishing is expressed in

terms of a stock’s capacity to produce

MSY on a continuing basis, nothing in

the Magnuson-Stevens Act implies that

such production, in the form of harvest,

must actually occur. That is, a stock

does not actually need to produce MSY

on a continuing basis in order to have

the capacity to do so.

Use of the Terms ‘‘Overfishing’’ and

‘‘Overfished’’

The relationship between the terms

‘‘overfishing’’ and ‘‘overfished’’ can be

confusing. As used in the MagnusonStevens Act, the verb ‘‘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. ‘‘Overfishing,’’ then,

occurs whenever a stock or stock

complex is subjected to any such rate or

level of fishing mortality. Interpreting

the term ‘‘overfished’’ is more

complicated. In the Magnuson-Stevens

Act, this term is used in two senses:

First, to describe any stock or stock

complex that is subjected to overfishing;

and second, to describe any stock or

stock complex for which a change in

management practices is required in

order to achieve an appropriate level

and rate of rebuilding. (See, for

example, section 303(a)(1)(A) and

section 304(e)(1)) To avoid confusion,

the proposed guidelines use

‘‘overfished’’ in the second sense only.

Both terms would be defined in

§ 600.310(d).

Status Determination Criteria

The Magnuson-Stevens Act, in section

303(a)(10), requires that each FMP

specify objective and measurable

criteria (status determination criteria)

for identifying when stocks or stock

complexes covered by the FMP are

overfished. To fulfill the intent of the

Magnuson-Stevens Act, such status

determination criteria are comprised of

two components: A maximum fishing

mortality threshold and a minimum

stock size threshold (see

§ 600.310(d)(2)). The maximum fishing

mortality threshold should be set at the

fishing mortality rate or level defined by

the chosen MSY control rule. The

minimum stock size threshold should

be set at one-half the MSY level, 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,

whichever is greater. When data are

insufficient to estimate any of these

quantities, use of reasonable proxies

would be required.

It is important to note that, even if no

minimum stock size threshold were set,

the maximum fishing mortality

threshold would define a minimum

limit on the rate of rebuilding for a stock

that falls below its MSY level. The

reason for requiring a minimum stock

size threshold in addition to a

maximum fishing mortality threshold is

to define the point at which this

minimum rebuilding rate is no longer

prudent. For example, in the case of a

slow-growing stock, a rebuilding rate

that satisfies the statutory deadline of 10

years would be considered prudent

management. However, for a fastgrowing stock, it might be possible to

fall to an extremely low level of

abundance and still rebuild to the MSY

level within 10 years, which would not

be considered prudent management.

Thus, the definition of the minimum

stock size threshold includes a

constraint, equal to one-half the MSY

level, to ensure that the 10-year

allowance is not abused in the case of

fast-growing stocks.

Choosing an MSY control rule is thus

key to satisfying national standard 1,

because it defines the maximum fishing

mortality threshold and plays a role in

defining the minimum stock size

threshold. Any MSY control rule

defines a relationship between fishing

mortality rate and stock size. This

relationship is the maximum fishing

mortality threshold, which may be a

single number or a mathematical

function. In addition, any MSY control

rule defines a rate of rebuilding for

stocks that are below the level that

would produce MSY. The smallest stock

size at which rebuilding to the level that

would produce MSY is achieved within

10 years defines the minimum stock size

threshold for that rule, unless such a

stock size is less than one-half the MSY

level. The MSY control rule also defines

an upper bound on any OY control rule

that might be specified.

The proposed status determination

criteria in § 600.310(d)(2) would play a

fundamental role in developing the

Secretary’s annual report to Congress

and the Councils, as required by section

304(e) of the Magnuson-Stevens Act.

Under the proposed guidelines, the

Secretary’s annual report would list all

stocks or stock complexes for which the

maximum fishing mortality rate has

been exceeded or for which the

minimum stock size has not been

achieved. Thus, the Secretary’s decision

as to whether a stock or stock complex

is listed in the annual report of

overfished stocks would be based on

either the current rate of fishing

mortality or the current condition of the

stock, regardless of whether that

condition is associated with either

previous or current overfishing.

Preventing Overfishing

The Magnuson-Stevens Act is clear in

its requirement to prevent overfishing.

Except under very limited conditions,

discussed below, this requirement must

be satisfied. The Magnuson-Stevens

Act’s requirement to take remedial

action in the event that a stock becomes

overfished is not a substitute for the

requirement to prevent overfishing in

the first place.

Previous versions of the national

standard guidelines have described

limited conditions under which some

amount of overfishing is permissible.

Some of these conditions are retained in

§ 600.310(d)(6) in the proposed revision,

but they are tightened considerably.

Although the Magnuson-Stevens Act

requires that OY and overfishing criteria

be specified for each fishery, it does not

require a one-to-one relationship

between the fisheries for which OYs are

specified and the fisheries for which

overfishing criteria are specified. For

example, in a mixed-stock fishery,

overfishing criteria may be specified for

the individual stocks, even if OY is

specified for the fishery as a whole (see

§ 600.310(c)(2)(iii)). Thus, it is

conceivable that OY could be achieved

for the fishery as a whole, even while

overfishing of an individual stock is

occurring.

Ending Overfishing and Rebuilding

Overfished Stocks

In the event that overfishing occurs or

is projected to occur within 2 years, or

in the event that a stock or stock

complex is overfished or is projected to

become overfished within 2 years, the

Magnuson-Stevens Act, in section

304(e), gives detailed requirements for

Council action that must be undertaken

in response. As described in

§ 600.310(e) of the proposed guidelines,

if overfishing is occurring, Council

action must be designed to reduce
41910 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules

fishing mortality to a rate or level no

greater than the maximum fishing

mortality threshold. If a stock or stock

complex is overfished, fishing at a rate

or level equal to the maximum fishing

mortality threshold will not meet the

required rate and level of rebuilding. In

such cases, Council action must go

beyond that required for situations

involving only overfishing.

Although the Magnuson-Stevens Act

implicitly sets the rebuilding target

equal to the MSY stock size, this

constitutes a minimum standard only.

In general, management practices

should be designed to achieve an

average stock size equal to the stock size

associated with OY (or the average OY,

in cases where OY is determined

annually), and rebuilding plans should

be consistent with this goal. Because OY

cannot exceed MSY on average, the

stock size that would produce OY will

generally be greater than the stock size

that would produce MSY. Remedial

action should do more than merely

assure that the stock reaches the target

level; rather, the goal should be to

restore the stock’s capacity to remain at

that level on a continuing basis,

consistent with the stock’s natural

variability. For example, a stock should

not be considered rebuilt just because

its current size matches the target level,

which could result from a single good

year class, if the stock’s condition

would not likely be sustained by

succeeding year classes. In order to

conclude that a stock has fully

recovered, it may be necessary to

rebuild the age structure, in addition to

achieving a particular biomass target.

This generally requires keeping fishing

mortality at an appropriately low level

for several years (approximately one

generation of the species).

Remedial action should be designed

to make consistent and reasonably rapid

progress towards recovery. ‘‘Consistent

progress’’ means that no grace period

exists beyond the statutory timeframe of

1 year for taking remedial action, and

that such action should include explicit

milestones expressed in terms of

measurable improvement of the stock

with respect to its status determination

criteria. The Magnuson-Stevens Act, in

section 304(e)(4), requires that the time

period for rebuilding be as short as

possible, but always less than 10 years,

except in cases where the biology of the

stock of fish, other environmental

conditions, or management measures

under an international agreement in

which the United States participates

dictate otherwise.

Optimum Yield

One of the most significant changes

made by the SFA is a requirement that

OY not exceed MSY. Further, for

overfished fisheries, OY must be based

upon a rebuilding schedule that

increases stock levels to those that

would produce MSY. These changes are

expressions of a precautionary

approach, which should contain three

features (see § 600.310(f)(5)). First, target

reference points, such as OY, should be

set safely below limit reference points,

such as the catch level associated with

the maximum fishing mortality

threshold. Second, a stock that is below

its MSY level should be harvested at a

lower rate or level of fishing mortality

than if it were above its MSY level.

Third, the criteria used to set target

catch levels should be explicitly risk

averse, so that greater uncertainty

regarding a stock’s status or productive

capacity corresponds to greater caution

in setting target catch levels. Because

specification of a precautionary

approach can be a complicated exercise,

NMFS plans to supplement these

guidelines in the near future with

technical guidance for use in

implementing such an approach. This

additional guidance may be provided in

a form similar to that developed to

implement the 1994 amendments to the

MMPA.

The Magnuson-Stevens Act is clear in

its requirement that specification of OY

take into account protection of marine

ecosystems. This is reflected in the new

provisions concerning the identification

and description of essential fish habitat

(EFH). Proposed guidelines for

designation of EFH were published in

the Federal Register on April 23, 1997,

at 62 FR 19723. Due to the complex

nature of marine ecosystem structure

and function, qualitative methods may

be used to satisfy this requirement

wherever data or scientific

understanding are insufficient to permit

use of quantitative methods.

NMFS recognizes the growing

importance of non-consumptive uses of

marine fishery resources. Such activities

include ecotourism, fish watching,

recreational diving, and marine

education. These proposed guidelines

are intended to accommodate such uses

in specifying OY.

National Standard 2

National standard 2 requires that

conservation and management measures

be based on the best scientific

information available. Guidelines for

national standard 2, at § 600.315, would

be revised to clarify that data to be

considered include information on the

marine ecosystem, and that information

on the fishery should include

information on fishing communities.

These proposed revisions reflect

increased emphasis placed on these

areas by the SFA. In addition,

§ 600.315(e)(3) would be revised to

require that each Stock Assessment and

Fishery Evaluation (SAFE) report

contain a description of the maximum

fishing mortality threshold and the

minimum stock size threshold for each

stock or stock complex, along with

additional information to determine the

stock status relative to the overfishing

criteria.

National Standard 4

Language from section 303(a)(14) of

the Magnuson-Stevens Act would be

added to § 600.325(c)(3)(ii) to specify

that, 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.

National Standard 5

The SFA reworded this standard by

replacing the word ‘‘promote’’ with

‘‘consider.’’ The proposed revisions to

§ 600.330 would revise the national

standard language and make other

minor adjustments to bring the

guidelines into conformance with that

change, replace the term ‘‘Magnuson

Act’’ with ‘‘Magnuson-Stevens Act,’’

and correct references to that statute.

National Standard 7

National standard 7 requires that

conservation and management measures

shall, where practicable, minimize costs

and avoid unnecessary duplication.

Section 600.340(b) would be revised to

clarify that, while the MagnusonStevens Act does not require that an

FMP be prepared for every fishery,

Councils must prepare FMPs 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.

National Standard 8

National standard 8 requires that

conservation and management measures

take into consideration the importance

of fishery resources to fishing

communities, with a goal of providing

for the sustained participation of those

communities and minimizing adverse

economic impacts to the extent

practicable. In successive drafts of

standard 8, Congress clarified that the
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules 41911

importance of fishery resources to

fishing communities must be considered

within the context of the conservation

requirements of the Magnuson-Stevens

Act by including in the final standard

the phrase ‘‘consistent with the

conservation requirements of this Act

(including the prevention of overfishing

and rebuilding of overfished stocks).’’

Therefore, the proposed guidelines

emphasize that national standard 8 must

not compromise the conservation goals

of the Magnuson-Stevens Act.

For the purposes of national standard

8, fishing communities are considered

geographic areas encompassing a

specific locale where residents are

dependent on fishery resources or are

engaged in the harvesting or processing

of those resources. The geographic area

is not necessarily limited to the

boundaries of a particular city or town.

No minimum size for a community is

specified, and the degree to which the

community is ‘‘substantially engaged

in’’ or ‘‘substantially dependent on’’ the

fishery resources must be defined

within the context of the geographical

area of the FMP. Those residents in the

area engaged in the fisheries include not

only those actively working in the

harvesting or processing sectors, but

also ‘‘fishery-support services or

industries,’’ such as boat yards, ice

suppliers, or tackle shops, and other

fishery-dependent industries, such as

ecotourism, marine education, and

recreational diving.

The term ‘‘sustained participation’’

does not mandate maintenance of any

particular level or distribution of

participation in one or more fisheries or

fishing activities. Changes are inevitable

in fisheries, whether they relate to

species targeted, gear utilized, or the

mix of seasonal fisheries during the

year. This standard implies the

maintenance of continued access to

fishery resources in general by the

community. As a result, national

standard 8 does not ensure that

fishermen would be able to continue to

use a particular gear type, to target a

particular species, or to fish during a

particular time of the year.

National Standard 9

National standard 9 requires that the

Councils and NMFS consider the effects

of conservation and management

measures on bycatch. This standard

applies to all existing and planned

conservation and management

measures, because most of these

measures can affect amounts of bycatch

or bycatch mortality in a fishery, as well

as the extent to which further

reductions in bycatch are practicable

(but see discussion above under

‘‘General’’.

Specifically, national standard 9

requires that conservation and

management measures, to the extent

practicable, minimize bycatch and, to

the extent that bycatch cannot be

avoided, minimize the mortality of such

bycatch. Bycatch occurs when fishing

methods are not perfectly selective or

when fishermen catch more than they

are able to or choose to retain. A fishing

method is perfectly selective if it results

in the catch and retention only of the

desired size, sex, quality, and quantity

of the target species, without causing

other fishing-related mortality; few, if

any, fishing methods meet these strict

criteria. Bycatch results in fishing

mortality because some portion of the

bycatch does not survive, even if it is

returned to the sea or escapes after an

encounter with the fishing gear. Bycatch

mortality affects the ability to achieve

sustainable fisheries and the benefits

they can provide to the Nation.

For purposes of national standard 9,

the term ‘‘bycatch’’ means fish that are

harvested in a fishery, but that are not

sold or kept for personal use. Fish

released alive under a recreational

catch-and-release fishery management

program are not considered bycatch if

they are not regulatory discards (fish

released because regulations require it).

Fish released dead under a recreational

catch-and-release program are

considered bycatch. Atlantic highly

migratory species harvested in a

commercial fishery managed by the

Secretary under section 304(g) of the

Magnuson-Stevens Act or the Atlantic

Tunas Convention Act (16 U.S.C. 971d)

that are not regulatory discards and that

are tagged and released alive under a

scientific tagging and release program

established by the Secretary are not

bycatch. Bycatch also does not include

any fish that are legally retained in a

fishery and kept for personal, tribal, or

cultural use or that enter commerce

through sale, barter, or trade. Fish

donated to a nonprofit organization are

bycatch if the retention of the donated

fish otherwise would be prohibited.

‘‘Fish,’’ as defined in § 600.10,

includes all forms of marine animal

(including sea turtles) and plant life,

other than marine mammals and birds.

Thus, national standard 9 does not

apply to the incidental catch of marine

mammals or birds. Incidental catches of

these species are governed under other

statutes such as the MMPA, the ESA, or

the Migratory Bird Treaty Act.

Bycatch includes fish taken by fishing

gear but not captured by a fisherman

(i.e., unobserved fishing-related

mortality). For purposes of national

standard 9, unobserved mortality is

restricted to mortality resulting from

direct interaction with fishing gear.

Examples of unobserved bycatch

mortality include mortality resulting

from injuries to fish that escape through

net mesh; mortality of crabs or other

benthic organisms that are crushed by

on-bottom gear; mortality of fish that are

hooked, but not landed; or mortality of

fish due to ghost fishing of abandoned

or lost fishing gear. Mortality due to

other than direct interactions of fish

with fishing gear is not included as

bycatch; however, the ecosystem or

other effects of such mortality can be

important.

‘‘Discard’’ refers only to the discard of

whole fish at sea or elsewhere. Bycatch

and bycatch mortality can be reduced by

changing how, when, where, and how

many fish are caught, how many fish are

discarded, and how fish are handled

before being discarded. Bycatch can be

decreased either by decreasing the catch

of fish that would be discarded or by

retaining fish that otherwise would be

discarded. National standard 9

establishes a priority first to reduce

bycatch, and then to increase the

survival rate of fish that are discarded.

Reducing bycatch by simply retaining

juvenile fish that would otherwise have

been discarded will not eliminate the

problem of foregoing the potential

growth of those fish. This approach may

be substantially less beneficial than

avoiding the catch of the juvenile fish in

the first place. Therefore, alternatives

that include reduction in the catch of

juvenile fish should be considered.

The proposed national standard 9

guidelines acknowledge that bycatch

and discard survival data, information

to assess impacts on the population and

ecosystem, and data on social and

economic effects of alternative

management measures to reduce

bycatch may be limited. Due to these

limitations, precise estimates of bycatch,

bycatch mortality, or associated effects

of alternative conservation and

management measures may not be

possible.

Councils should support monitoring

programs to improve estimates of total

fishing-related mortality and bycatch, as

well as those to improve other

information used to determine the

extent to which it is practicable to

reduce bycatch and bycatch mortality.

Sources of this information could

include at-sea observer programs, new

technology to monitor catch weight and

species composition, or better use of

industry-reported catch and discard

information. The importance of this

activity is emphasized in section

303(a)(11) and (12) of the Magnuson-
41912 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules

Stevens Act, which requires that FMPs

establish a standardized reporting

methodology to assess the amount and

type of bycatch occurring in the fishery.

Timely summaries of the amount and

type of bycatch for each fishery should

be collated for each fishery; SAFE

reports required under § 600.315(e)

provide a vehicle for these summaries.

Because limited resources are

available to the Councils and NMFS to

address bycatch problems, and a variety

of bycatch problems exists in most

fisheries, each Council should identify

and prioritize the bycatch problems in

its fisheries, based on the benefits to the

Nation expected to accrue from

addressing these problems.

National Standard 10

This new standard states,

‘‘Conservation and management

measures shall, to the extent practicable,

promote the safety of human life at sea.’’

It requires that FMPs, FMP

amendments, and other regulations

consider impacts of management

measures on safety of life at sea and

attempt to minimize any adverse

impacts. The proposed guidelines

interpret the phrases ‘‘to the extent

practicable’’ and ‘‘safety of human life at

sea,’’ and include guidance on safety

considerations, a consultation process,

and possible mitigation measures to be

used to avoid or lessen the impact of

management measures on the safety of

fishermen.

Classification

This rule has been determined to be

significant for purposes of E.O. 12866,

although a determination has not been

made whether the actions associated

with the guidelines will have an annual

impact on the economy of $100 million

or more.

The main thrust of the guidelines, in

carrying out the 1996 revisions to the

Magnuson-Stevens Act, is to reduce

overfishing immediately, rebuild

overfished stocks within a set

timeframe, and reduce bycatch and

bycatch mortality to the extent

practicable. An economic analysis

quantifying the expected benefits and

costs is not available at this time.

However, it is expected that as fish

stocks are rebuilt, long-term benefits

will significantly outweigh short-term

costs of management regimes developed

under these guidelines. The relative

benefits and costs associated with the

implementation of the guidelines will

be determined as individual FMPs are

revised to meet the new provisions of

the Magnuson-Stevens Act.

Nevertheless, a rough estimate of the

total potential benefits can be made,

assuming that all stocks are rebuilt to

their maximum sustainable levels. Over

the long term, and summed for all

fisheries within the exclusive economic

zone, the potential increase in net

revenues is estimated at $2.9 billion

annually, along with an additional

300,000 jobs nationwide. As the flow of

fish from rebuilt stocks to consumers

increases, price fluctuations may begin

to flatten, and employment will

stabilize, thereby providing additional

benefits to the Nation. The costs

associated with programs developed

under these guidelines will include

short-term reductions in fishing effort

and investment in new fishing gear.

Each amendment to an existing FMP

and all new FMPs will contain detailed

analyses of the benefits and costs of the

management programs under

consideration, to ensure compliance

with E.O. 12866.

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

proposed rule, if adopted, would not

have a significant economic impact on

a substantial number of small entities.

This proposed rule would add to and

update 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 proposed 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.

As a result, a Regulatory Flexibility

Analysis for this proposed rule was not

prepared.

Reference

Rosenberg, A., P. Mace, G. Thompson,

G. Darcy, W. Clark, J. Collie, W. Gabriel,

A. MacCall, R. Methot, J. Powers, V.

Restrepo, T. Wainwright, L. Botsford, J.

Hoenig, K. Stokes. 1994. Scientific

review of definitions of overfishing in

U.S. fishery management plans. NOAA

Tech. Memo. NMFS-F/SPO–17, 205 p.

Nat. Mar. Fish. Serv., Office of Science

and Technology, 1315 East-West Hwy.,

Silver Spring, MD 20910.

List of Subjects in 50 CFR Part 600

Fisheries, Fishing.

Dated: July 30, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 600 is proposed

to be amended as follows:

PART 600—MAGNUSON 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 follows:

PART 600—MAGNUSON-STEVENS

ACT PROVISIONS

3. In § 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:

§ 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
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules 41913

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:

§ 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.

(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 longterm average catch approximating MSY.

(iii) ‘‘MSY stock size’’ means the longterm 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,

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 § 600.315) and must

incorporate appropriate consideration of

risk (see § 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 somewhere in the

range of 25–75 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.
41914 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules

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 § 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

§ 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 § 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 timeframe (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

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.

(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

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 ecologically significant unit

thereof to require protection under the

ESA, or any stock or stock complex to

fall below its minimum stock size

threshold.

(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

timeframe.

(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,
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules 41915

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 is 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. However, in no case may the

timeframe for rebuilding exceed 10

years, except where the biology of the

stock or stock complex, other

environmental conditions, or

management measures under an

international agreement in which the

United States participates dictate

otherwise.

(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

to a Council request, may implement

interim measures to reduce overfishing

under section 305(c) of the MagnusonStevens 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 Councilrecommended 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 noticeand-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 longterm 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, and

utilizing the capacity of U.S. fishery

resources to meet nutritional needs.

(ii) The benefits of recreational

opportunities reflect the importance of

the quality of the recreational fishing

experience and of the contribution of

recreational fishing to the national,

regional, and local economies and food

supplies. Such benefits also include the

quality of non-consumptive fishery

experiences such as ecotourism, fish

watching, recreational diving, and other

non-consumptive activities important to

the national, regional, and local

economies.

(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 MagnusonStevens 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
41916 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules

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 should 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, research fishing,

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,

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 § 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:

§ 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 the most recent
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules 41917

biological condition of stocks and the

marine ecosystems in the FMU and the

social and economic condition of the

recreational and commercial fishing

interests 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 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.

* * * * *

(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, and ecological information

pertinent to the success of management

or the achievement of objectives of each

FMP.

* * * * *

6. In § 600.320, the last sentence of

paragraph (c) is revised to read as

follows:

§ 600.320 National Standard 3—

Management Units.

* * * * *

(c) * * * The Secretary designates

which Council(s) will prepare the FMP,

under section 304(f) of the MagnusonStevens Act.

* * * * *

7. In § 600.325, paragraph (c)(3)(ii) is

revised to read as follows:

§ 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 § 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:

§ 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 encouraging 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 MagnusonStevens 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

§ 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 § 600.340, paragraph (b)(1) is

amended by revising the second

sentence to read as follows:

§ 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:

§ 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
41918 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules

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

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 fisheriesdependent 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 should 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 MagnusonStevens 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.

§ 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 three ways,

impede efforts to achieve sustainable

fisheries and the full benefits they can

provide to the Nation. First, failure to

include bycatch in estimating allowable

catch in a directed fishery may result in

unintended overfishing. Second, it 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. Finally, bycatch may

preclude other more productive uses of

fishery resources.

(c) Definitions—(1) Bycatch. The term

‘‘bycatch’’ means fish that are harvested

in a fishery (i.e., removed permanently

from the population as a result of

fishing), but that are not sold or kept for

personal use. Bycatch includes

economic discards, 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.

(2) Discard. The term ‘‘discard’’ refers

only to the discard of whole fish at sea

or elsewhere.

(d) Minimizing bycatch and bycatch

mortality. The priority for reducing

bycatch under this standard is to

minimize or avoid catching bycatch

species where possible. Fish that are

bycatch and cannot be avoided should,

to the extent practicable, be returned to

the sea alive. To evaluate conservation

and management measures relative to

this and other national standards, as

well as to evaluate total fishing

mortality, Councils should:

(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 should 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
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules 41919

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

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 estimates.

(3) Select measures that, to the extent

practicable, will minimize bycatch and

bycatch mortality. A determination of

whether a conservation and

management measure minimizes

bycatch or bycatch mortality to the

extent practicable, consistent with other

national standards, should consider the

following factors:

(i) Population effects for the bycatch

species.

(ii) Ecological effects due to changes

in the bycatch of that species (effects on

other species in the ecosystem).

(iii) Changes in the bycatch of other

species of fish and the resulting

population and ecosystem effects.

(iv) Effects on marine mammals and

birds.

(v) Changes in fishing, processing,

disposal, and marketing costs.

(vi) Changes in fishing practices and

behavior of fishermen.

(vii) Changes in research,

administration, and enforcement costs

and management effectiveness.

(viii) Changes in the economic, social,

or cultural value of fishing activities and

nonconsumptive uses of fishery

resources.

(ix) Changes in the distribution of

benefits and costs.

(x) Social effects.

(4) Implement and 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,

implementation 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.

§ 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

is considered the same as ‘‘safety of

human life at sea.’’ The safety of a vessel

and the people aboard it 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 noninclusive 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

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
41920 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Proposed Rules

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. 97–20588 Filed 7-31-97; 2:30 pm]

BILLING CODE 3510–22–F